Electronic Discovery Law
Court Orders Production of Plaintiff's User Names and Passwords for Social Network Accounts
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010)
In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords. Plaintiff objected, arguing that the information was confidential. Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.
Plaintiff was allegedly injured after being rear-ended during a cool-down lap following a stock care race in the summer of 2007. In the course of the ensuing litigation, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts. Plaintiff objected arguing that the information was confidential. After viewing the public portion of plaintiff’s account, which included comments about a fishing trip and attending the Daytona 500 in Florida, defendants filed a Motion to Compel.
Reasoning that plaintiff was “essentially asking the Court to recognize a privilege for [social network] communications,” the court first established the broad scope of discovery in Pennsylvania and the limited application of evidentiary privileges, noting that “even in the arena of testimony, where the evidence will be publically divulged, the courts sanction the application of privilege, ‘only to the very limited extent that [it] has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”
Specifically addressing the expectation of privacy with regard to Facebook and MySpace, the court found that any such expectation “would be unrealistic.” The court then analyzed the relevant policies of the two sites, and concluded as to both that, “[w]hen a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.” Accordingly, the court determined that defendant could not successfully assert that his accounts were confidential. In so holding, the court also noted the possibility that communications could be disclosed by friends of the account holder with whom the communcations were shared.
The court further indicated that it would reach the same result under “Wigmore’s test for privilege”- the test to establish whether a new privilege should be recognized (as outlined in the opinion). To summarize, after analyzing the four factor test, the court concluded that no person could reasonably expect that his communications on a social network site would remain confidential; that confidentiality was not essential to maintain the relationships between social network users; that the relationship between users was not one that the “community seeks to sedulously foster”; and that “whatever relational harm may be realized by social network computer site users [by disclosure of their communications] is undoubtedly outweighed by the benefit of correctly disposing of litigation.” As to the last point, the court went on to reason that “[a]s a general matter, a user knows that even if he attempts to communicate privately, his posts may be shared with strangers as a result of his friends’ selected privacy settings. The court thus sees little or no detriment to allowing that other strangers, i.e., litigants, may become privy to those communications through discovery.”
Finally, the court cited the “countervailing benefits” to allowing access to social network sites, primarily that gaining access could help to prove the truth or falsity of any claims. Further, the court noted some users’ propensity to utilize the sites “indiscreetly” and reasoned that “[w]hen they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bright [sic] to light relevant information that may not otherwise have been know.”
The court concluded:
Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given Koken’s admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth.” 911 A.2d at 1027, and the law’s general dispreference for the allowances of privileges, access to those sites should be freely granted.
The court ordered production of the requested information to defendants' counsel within 15 days and that plaintiff should take no action to alter or delete the information on the relevant accounts.
Copies of the full opinion and order are available here.
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