It now seems that a week doesn't go by without a court being forced to rule on whether and to what extent a Defendant can force a Plaintiff to give access to his or her Facebook account as a part of the discovery process. Defendants around the country seem to have all attended the same seminar and collectively decided that they should have total access in any type of case to fish through anything and everything that a Plaintiff has ever posted to his or her friends on Facebook or any other social mediation site. Again and again, the courts have to tell them no.
The latest decision to come to my attention (care of the excellent New York Personal Injury Law Blog) is Tapp v. New York State Urban Dev. Corp. In Tapp, the court had to address the defendant's argument that it should be given unfettered access to the Plaintiff's Facebook account because the Defendant believed (read "hoped") that the Plaintiff may have said something on Facebook that would contradict the claims he made in the lawsuit. The court said that such a belief/hope, without anything to warrant or substantiate it, isn't going to be sufficient to gain such discovery.
“Mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. ... To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”
I think the approach taken by the Tapp court makes sense. There really needs to be a fact-specific case by case analysis of whether and how much social media discovery is warranted. Open-ended social media discovery has the potential to quickly become so abusive and over-burdensome that it could slow the already painfully slow discovery process to a near standstill. Can you imagine obtaining and combing through the social media histories of 10-20 witnesses per case? (So many pictures of cats, so little time.) It makes me shudder just thinking about it.
You can read the entire Tapp opinion here.