1. What are the interests that a court must balance in making decisions about discovery on social media accounts?

2. What are the court’s concerns about how social media information will be used?

3. What will the parties in this case have to do before the court can rule on the motion?

Gina L. Fawcett (plaintiff) and her then-minor son, John, sued Sea High School and the parents of Nicholas Altieri (defendants) to recover damages for John’s eye injury that he sustained in an altercation with Nicholas during a tennis match with St. Joseph High School. The defendants made a discovery request for access to John’s social media accounts, including Facebook, MySpace, Friendster, Flickr, and others. Ms. Fawcett moved for a protective order to prevent discovery of the information on these sites because John’s sites were not publicly available.

JUDICIAL OPINION

MALTESE, Judge … It is without dispute that plaintiffs, who place their physical condition in controversy may not shield from disclosure material, which is necessary for the defense of the action. It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but also to damages as well.

A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. This inquiry requires a determination by the court as to whether the content contained on/in a social media account is “material and necessary;” and then a balancing test as to whether the production of this content would result in a violation of the account holder’s privacy rights. [P]laintiff’s counsel argues that access to the plaintiff’s social media accounts sought by the defendants are not relevant to mount a defense against an allegation of civil assault battery or negligence. However, to accept such an argument would ignore the defendants’ right to seek discovery relating to the damages John Fawcett, Jr. sustained as a result of this altercation. Plaintiff’s bill of particulars states that the injuries he sustained as a result of this incident will continue to affect him socially, educationally, economically, and in the way he pursues recreation into the future.

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet. Whether these broadcasts take the form of “tweets,” or postings to a user’s “wall,” the intent of the users is to disseminate this information. Judge Matthew Sciarrino pointed out in his decision concerning an “Occupy Wall Street” protestor charged in the Criminal Court of New York County that, “[i]f you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.”

At the end of 2009 Facebook reset user privacy settings to default all profiles to public from private. In early 2010 after this setting change, Facebook’s president and founder Mark Zuckerberg, in an interview with TechCrunch responded to the question “where is privacy on the web going?” as follows: When I got started in my dorm room at Harvard, the question a lot of people asked was why would I want to put any information on the Internet at all? Why would I want to have a website?

And then in the last 5 or 6 years, blogging has taken off in a huge way and all these different services that have people sharing all this information. People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time. We view it as our role in the system to constantly be innovating and be updating what our system is to reflect what the current social norms are. Mark Zuckerberg and Sheryl Sandberg extolled the benefits of these multilayered “privacy” settings in a November 7, 2011 television interview with Charlie Rose. While the ultimate privacy and subsequent disclosure of social media postings are disputable, the facts in this case are not developed to either compel or preclude their discovery.

There must be a clear factual predicate in order to compel the production of social media records from the defendants or authorizations for the production of that material from certain social media providers. Consequently, on the facts before this court depositions must be conducted before one can properly determine whether the plaintiff should be compelled to produce social media records; and conversely, whether the defendants should be precluded from accessing this information.