New Wine in an Old Bottle: The Discoverability of Social Media.
According to the Pew Research Center, 7 out of 10 Americans participate in social media. We share our lives with varying degrees of privacy on platforms like Facebook, Twitter, Instagram, and Snapchat. From sharing personal details such as wedding photos and clips from sporting events on Instagram or Facebook to viewing news from around the world on CNN’s Snapchat, the rise, and popularity of social media are indisputable. However, what happens when an adverse party wants an inside look at your account? As one judge in Pennsylvania succinctly wrote, perhaps the discoverability of social media is “simply new wine in an old bottle.” Brogan v. Rosenn, Jenkins & Greenwald, LLP, No. 08-CV-6048, 2013 WL 1742689, at *6 (Lackawanna Cnty. C.P. Apr. 22, 2013).
Common advice given to job seekers is to make their social media accounts private when they start applying because it’s not uncommon for companies to start with some online research of the applicants it encounters. This strategy is also applicable when a legal case commences. However, unlike job seekers who can keep their social media accounts private from their potential employers; that same right of privacy may not apply to the parties in a legal matter. If you file a personal injury claim and then post a public Facebook status about your rigorous marathon training, you can bet that your opposing party will seek to enter that information into evidence. Moreover, they may use that original post to argue that additional evidence may reside in private posts, or in other social media accounts.
When a party moves to obtain access to a social media account, the court will typically balance an individual’s expectation of privacy with the right of the opposing party to get relevant data. Although there is a debate, most courts do not seem compelled to upset the status quo for the discoverability of ESI. For now, case law appears to rest comfortably on the existing protocol: the burden rests on the requesting party to prove that access may reasonably lead to the discovery of admissible evidence. Romano v. Steelcase, 907 N.Y.S.2d 650, 654 (N.Y. App. Div. 2010).
Does that mean that if you enter into litigation you are inviting the adverse party to expose everything in your social media accounts? Certainly not. While the courts aim to provide access to social media where there is a likelihood of discovering relevant evidence, “fishing expeditions” are typically denied. Just like the mere existence of an email account does not give a moving party the right to obtain its contents, simply having a social media account, coupled with an adverse party’s desire to uncover whether relevant information resides within, is not enough to compel access. Winchell v. Lopiccolo, 38 Misc. 3d 458, 461 (N.Y. Sup. Ct. 2012)
In summary, you should view your social media accounts much like anything else you document electronically; always remember that what may feel private to you may, in fact, be discoverable should you enter into litigation.