DID YOU REALLY THINK FACEBOOK WAS PRIVATE?

 If you ever find yourself in a lawsuit, your Facebook privacy settings may no longer matter.

Discovery is a process through which parties to a lawsuit collect evidence and information to prepare their cases for settlement negotiations or trial.

Often, parties squabble over whether certain documents or areas of questioning are ‘discoverable’.  Usually the dispute over whether a discovery request must be honored is based on a claim that the document or information is either too burdensome to produce or is protected by laws concerning personal privacy. 

Lately, more and more of those squabbles concern whether an individual’s Facebook password and posts are discoverable. For anyone who hoped that their Facebook privacy settings were enough to keep their online discourse private from enemies or adversaries, that hope is fading fast. 

Most often, Courts deal with demands for Facebook access in the context of personal injury litigation where the defendant wants to use Facebook photos or posts to show that the plaintiff’s injuries are not as serious as he or she claims.  Let’s face it – photos of your golf swing or dance moves will shoot serious holes in your disability claim. 

Courts increasingly agree that Facebook content is fair game in the discovery process. 

Laws that prevent Facebook, itself, and other social media sites from disclosing member’s private information are of no help if you are the one being asked to allow access.  For example, a Pennsylvania court recently found that the federal Stored Communications Act, which would have prevented Facebook from honoring a subpoena of documents, did not apply to the Defendant, himself.  

Personal injury litigation is not the only area of law affected by this trend.  In a recent pretrial ruling, a Connecticut court paved the way for a divorcing couple in a child custody case to examine each other’s past and current Facebook posts following an attempt by the wife to change her password and delete posts. 

Conventional wisdom has always dictated that we shouldn’t post anything on Facebook that we wouldn’t want a potential employer to see. What this growing body of caselaw shows us is that, when you share too much information with your Facebook friends, you risk losing more than just a job.