Discovery of Social Media – Facebook, Twitter etc.
For years now I have been warning clients of the perils of using social media. Honestly, very little good can come of it. Like many things in life, words and pictures can be taken out of context. Although there are certainly things posted on Facebook where the context is very clear! What happens in Everett or Spokane, should sometimes stay in Everett or Spokane…. Regardless of whether or not a person is engaged in litigation, why in the world would you want to post so many private details for the entire world to see. I suppose there is some physiological reason for it that I’m not bright enough to figure out. Although I’m sure that John Smith’s exciting night out in Everett was quite something to see….
So how do you handle an interrogatory (question under oath) like this one?
Within the last ten years have you created, maintained, or posted a listing in/or have an account with Facebook, LinkedIn, YouTube, Twitter, MySpace, Word Press, Blogger or any other social networking or blogging device, application, or services? If so, identify:
a) The website address;
b) Your name, email address, log-in and/or user identification for the site;
c) Your Password;
d) Any other necessary information to obtain access to the site;
e) Whether you were previously "friends" or otherwise linked to the profiles of _________ and _________; and
f) The names of any other individuals who have allowed you to access to their passwords and accounts on such websites.
ANSWER:
Ok, and the answer is…OBJECT! There is no way in hell I would provide this information short of a Judge telling me to provide it. Instead of asking for bank statements, I guess the defense is just going to ask for your online banking username and password. How arrogant must one be to send out a question like this? (Rhetorical question…) Clearly this interrogatory is unduly burdensome and overly broad:
Objection. The request is unduly burdensome, expensive or oppressive in that it would require undue expense, investigation, research, or compilation of information in the possession of non-parties equally accessible to the parties.
I believe that the only information they should have access to is public information. If it’s a public Facebook or Twitter post, go for it. They don’t need you to provide it. They can go get it themselves. If they want your client’s private posts, well they better have some basis as to how this information is reasonably calculated to lead to admissible evidence and isn’t just an overly broad fishing expedition.
If we are going to reign in these oppressive discovery tactics, we need to take it on with full force. Don’t agree to anything like this and make the defense fight for it. They can fight these little skirmishes while we win the war.