eDiscovery Daily Blog

• November 9, 2010

Discoverability of social-media usage continues to be a hot topic for eDiscovery.  Information for litigants’ LinkedIn, Facebook, Twitter and MySpace accounts can be the “smoking gun” for litigators looking to pursue or defend a claim.

In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), defendant Hummingbird Speedway, Inc. sought to compel discovery of the plaintiff’s social network account log-in names, and passwords.  A copy of the opinion granting that Motion to Compel is available here.

The plaintiff was allegedly injured during a stock car race in the summer of 2007.  During the litigation that followed, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts – to which the plaintiff objected, arguing that the information was confidential.  Based on information in the public sections of the plaintiff’s social network accounts, the defendant filed a Motion to Compel.

In his opposition to the motion, the plaintiff argued that communications with friends via social media sites were private and protected from disclosure. The court disagreed, indicating that the plaintiff was essentially asking the court to recognize an evidentiary privilege for such communications, but that there is no “social media privilege” recognized by Pennsylvania’s court or legislature.

The court also noted that those communications were not privileged based on “Wigmore’s test for privilege”, which requires the plaintiff to establish four factors:

• “His communications originated in the confidence that they would not be disclosed”;
• “The element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties”;
• “Community agreement that the relationship must be sedulously fostered”; and
• “The injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation”.

Because the plaintiff failed to establish these factors, the court ultimately ruled that “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted”.

So, what do you think?  There have been other cases where the discoverability of social media was called into question – have you experienced any?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – For those (like me) who didn’t know what the word “sedulously” meant, I’ve provided a link to the definition above… 🙂