Social networking discovery protective orders

Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina.  I had the occasion, last week, to read her excellent article on her blog entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant’s and Clients."  I thought that the article was so good that I asked Melissa if I could re-post it as a guest blog on this blog, and she graciously agreed.  Her article is as follows: 

In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account. Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel. On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account. The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent. In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence. One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case. However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook. One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting his client’s private (and irrelevant) information.
 Continue Reading Read Melissa Brown's Interesting Article Entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant's and Clients"