No Matter Your Privacy Setting, Facebook and MySpace Accounts Are Not As Private As You May Like

One of the most important parts of a civil lawsuit is the discovery phase. During this stage of the lawsuit, parties to the action are able to request documents, and ask questions of their adversaries in order to compile evidence necessary to support their case at trial. The advent of social media in recent years has forced courts to determine whether information posted on sites like Facebook and MySpace is discoverable.

A recent Jefferson County, Pennsylvania, case (McMillen v. Hummingbird Speedway, Inc.) addressed whether one’s Facebook or MySpace account must be made accessible when a formal request is made to the court. Despite his unwillingness to do so, the Court ordered Plaintiff, McMillen, to provide his Facebook and MySpace usernames and passwords to the attorneys for the Defendants. The Court’s Order also specifically forbid McMillen from taking any action to delete or alter any existing information contained in his accounts.

Is this surprising? No, not really.

Generally speaking, the court will allow a party to obtain any relevant information that is reasonably calculated to lead to the discovery of admissible evidence. In Pennsylvania, this general rule is subject to few privileges which are narrowly construed by the Courts (i.e. the attorney-client privilege). Where a privilege is properly asserted, it acts to exclude otherwise discoverable information.

These general principles of discovery are neither new nor novel; however, their application by the Jefferson County Court is demonstrative of how the law adapts to handle 21st century technology. Photos, status updates, profile information, invitations, friend requests, and even messages between users, are all potentially discoverable. Now more than ever, it is important to monitor your online presence and ensure that the information you share is of the type that you intend to make public.

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