I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.
The attorney explained that Facebook recently permitted total access to users’ Facebook archives through a link on profile’s Account Settings. A user’s archive consists of every post, photograph and chat that the user has posted to Facebook; including posts that have been deleted and untagged photographs. To access the data, the user clicks on his/her Account Settings; and at the bottom of the Account Settings box, there is a hyperlink that states: “Download a copy of your Facebook data.” Once you click yes, the flood of data will be uploaded to your computer or storage device.
Of course, only the profile user can access his/her Facebook archive. The attorney suggested that, under the current law governing the discovery of information stored on social media sites, a request for production directed to your opponent—containing the directions for accessing the data on Facebook and a USB to store the information—should overcome any objection. It is likely that the request would need to be limited in time to be relevant. For example, the request could specify data from the date of injury or occurrence until present.
The ease of accessing information that your opponent placed on Facebook is a huge advantage to lawyers. No longer must one go through the arcane procedure of having a subpoena issued in either California or New York (Facebook only accepts subpoenas from these two states), and wait months and months with the hope that Facebook responds before your case is over. Now, a simple discovery request can be used to discover photographs that the policyholder posted of their house, car, business or equipment, which now they claim are a total loss. Liability insurers and worker’s compensation carriers can locate photographs of the plaintiff after the alleged injury. The amount of candid information that a user posts on Facebook, under the mistaken believe that it is private, is amazing. And, now, it is simple discovery request away.
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