Timothy Barber
Timothy Barber

“Private” Facebook Messages Aren’t Private in Litigation

August 20, 2013

You have your Facebook privacy set to “friends only.” You communicate with your friends using only private messaging and chats. No one else can get this information, right? Wrong. Despite what many people assume, even “private” social media content is discoverable in litigation, and courts are increasingly entering orders requiring users to disclose this information to the opposing party in a lawsuit.

Courts have struggled with the question of when a party to a lawsuit can be required to grant access to or produce their Facebook and other social media content. Relying on the federal Stored Communications Act (SCA), early cases that addressed the issue tended to rule that content that was available to other users was “public,” and therefore discoverable in civil ligation, but “private” communications were exempt from disclosure. These cases focused on the requirement under the SCA that users must “lawfully consent” to disclosure of their electronically stored information and therefore ruled that private messages were not discoverable.

However, courts have since changed direction and now regularly rule that even “private” social media content may be discoverable in litigation. Recent decisions have avoided the complexities of the SCA by simply requiring parties to a lawsuit to consent to produce their social media content. Courts are now ruling that social media content is discoverable so long as it is relevant to the issues in the case and that subjective expectations of privacy do not protect the information.

As such, courts have ordered litigants to produce Facebook content, even if users had set their account to the highest privacy setting. Courts have also ruled that social media content that originates from third parties, such as your friends’ posts on your wall and other people’s photographs that have you “tagged,” are discoverable in litigation. Even private messages and chats must be produced in some circumstances.

On the other hand, courts have not completely ignored the privacy interests involved in compelling disclosure of social media content. As a threshold matter, the content that is sought must be relevant to the issues in the case. For instance, a plaintiff who claims a debilitating personal injury can be required to produce private social media content after the date of the accident, if her public postings suggest her injury is not as severe as claimed. But, the opposing party cannot engage in a “fishing expedition” if the publicly-available content does not call into question any of the plaintiff’s allegations. Likewise, content from before the accident may not be discoverable.

Also, some courts have placed specific restrictions on the type of content that must be produced. For instance, where a plaintiff claimed a severe physical injury but posted a photograph of herself playing in the snow after the accident, the court ordered her to produce her private Facebook content including “all photographs of snow and references to snow in any emails and any photographs of Plaintiff . . . engaged in any physical activity.” Similarly, a party claiming sexual harassment in the workplace was compelled to produce private Facebook messages with her co-workers containing sexually suggestive commentary, but the messages were ordered to be redacted to omit irrelevant private information.

Courts have also come up with creative solutions to protect privacy interests when ordering social media content to be produced. One court created a Facebook account and ordered witnesses to “friend” the court, so the judge could privately view their Facebook information to determine whether it was relevant. Another court required a party to download her Facebook content to a hard drive and allowed an independent expert to review it for specific content.

The bottom line is that your social media content is discoverable, and a court can enter an order requiring you to produce it, if it is relevant to the issues in litigation. Setting your privacy settings to “friends only” or “private” does not protect your social media content from being disclosed. Even your private messages, chats, and personal emails can be compelled if they contain content that is relevant to the issues in a lawsuit.

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