36 Pages Posted: 1 Mar 2012 Last revised: 13 Mar 2014
Date Written: February 27, 2012
In the wake of the rise of social networking sites, courts and litigants are struggling to define the limits of civil discovery of such information. Some courts have applied the same rules to social networks that apply to all other documents: relevant materials responsive to a party’s requests must be produced. But a significant number of courts have created an entirely new procedure, applicable only to discovery of social networking materials, by ordering parties receiving such requests to not simply produce responsive documents, but to provide the opposing party with access to their entire account. Indeed, in several cases, courts have ordered the production of a party’s username and password, potentially compromising the security of other sites as well.
These decisions are mistaken. Nothing in the applicable state or federal rules governing discovery requires or even permits a court to order a person to allow another party to obtain documentary evidence directly from the source. Instead, the rules require that person only to produce responsive materials within the scope of discovery. Although it has not often been recognized, this production procedure serves a privacy-protective function: nonresponsive, irrelevant, or otherwise objectionable documents are seen only by one’s own counsel until a court specifically orders them to be turned over. There is no demonstrated need for a different procedure for social networks. By ordering parties to provide opposing counsel with unfettered access to entire accounts, including nonresponsive or irrelevant posts, photographs, and comments, both from the user and from all of the user’s friends and family, courts are needlessly violating the privacy of individuals even more than discovery already requires. Although there are times when the novel technological situation posed by the Internet, and its concomitant social transformations, require reinterpretation of a longstanding rule, this is not one of those times.
Keywords: Internet Law, social media, discovery
Suggested Citation: Suggested Citation
Boyden, Bruce E., Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law (February 27, 2012). Arkansas Law Review, Vol. 65, No. 1, 2012; Marquette Law School Legal Studies Paper No. 12-01. Available at SSRN: https://ssrn.com/abstract=2012121