In car accident cases, lawyers for each party are permitted to conduct written discovery by issuing subpoenas, propounding a list of written questions called “interrogatories,” or serving document requests. The use of discovery to obtain personal information posted on social media sites has recently become a hot topic. To what extent should discovery in a lawsuit be allowed when it seeks information from personal social media accounts? More specifically, should someone’s Facebook account be a subject of discovery when that person has been involved in a motor vehicle accident?
Recently, Federal Courts have addressed whether Facebook and social media sites are discoverable in civil litigation. In 2011, the United States District Court for the Eastern District of Michigan, in Chauvin v. State Farm Mut. Auto. Ins. Co., denied the defendant’s request to access the plaintiff’s Facebook account and held that “…discovery requested is available through less intrusive, less annoying and less speculative means…there is no indication that granting access to Plaintiff’s private Facebook account would be ‘reasonably calculated’ to lead to discovery of admissible information.” Chauvin v. State Farm Mut. Auto. Ins. Co., Case No. 10-11735 (E.D. Mich 2011). The Court saw no reason for one party to have access to the other’s Facebook page where there were much less intrusive ways to obtain the same information. In 2011, a Pennsylvania Court in Piccolo v. Paterson held that the plaintiff in a car accident did not have to accept a friend request on Facebook from the defendant, particularly since the defendant wished to access the plaintiff’s posts and view pictures of the accident.
In Illinois, Supreme Court Rule 201 sets forth the provisions and scope of discovery that can be conducted. The Illinois Supreme Court has considered the constitutional prohibition of unreasonable invasions of privacy and stressed that Rule 201 “form[s] a comprehensive scheme for fair and efficient discovery with judicial oversight to protect litigants from harassment.” Kendall v. Walton, 179 Ill.2d 519, 531 (1997). “A person has a reasonable expectation that he will not be forced to submit to a close scrutiny of his personal characteristics, unless for a valid reason.” Id. at 537. Given that the Court’s emphasis on the importance of reasonableness, it is sensible to conclude that complete and unfettered access to a litigant’s Facebook account falls outside the scope of discovery.
Another issue is how the rules of discovery will work with Facebook’s ever-changing terms and privacy agreements. To elaborate, examine this interactive graph, from Matt McKeon, which displays the changes in default privacy settings from 2005 – 2010. Over the span of five years, information maintained by Facebook has become less and less secure. For instance, with the launch of the new Timeline format, you can no longer mass hide all your “friending stories.” Similarly, a user cannot stop these stories from being posted. How quickly will privacy terms change again?
The courts must balance privacy interests and the right to conduct discovery. Given the trend, it also appears that there must be a significant and extremely compelling reason for a court to justify access to a Facebook account, especially when there are less intrusive methods available.