Friday, December 10, 2010

Let’s Face Up to Facebook Discovery: the Defense Can Discover an Employee’s Postings.

She says she was sexually harassed, but the defendant employer wants to get access to her Facebook postings because it has information that she lists herself as “single” while in truth married.  The employer asserts this is enough information to bring into question her credibility on the sexual harassment charge.  It wants a court order requiring the employee to provide password and username to access and search the site.  How will a court likely rule? 

Another way to ask this question is:  What are the employee’s reasonable privacy expectations, having filed a harassment suit against the employer.  Restrictions on the scope of the social media search are likely, but are total denial of a search legally mandated by privacy expectations? 

Let’s begin by stating that there is no definitive California a case law on this subject as yet.   The legislature has not entered the arena with specific discovery statutes aimed at social media.  Yet, some guiding principles are available.

First, the terms of agreement between the social media host and its user will be very relevant.  If the user has agreed that the posting is for full or partial public viewing, the “privacy expectation” will be determined in part by that agreement.  See Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125.  In Mackelprang v. Fidelity National Title Agency of Nevade Inc. 2007 U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007) the court denied an employer’s motion to compel the employee to give direct access to her MySpace account.  The facts are those stated by the opening paragraph of this  article.  The court reasoned that the “open ended” search for all MySpace positings was too broad and invasive.  It suggested a more focused description of the discoverable information. 

Discovery seeking “direct access” from the employee has a better chance of surviving a motion for protective order from the employee.  Third party access, that is, serving a subpoena on the website host itself, is unlikely of success due to federal laws generally designed to promote free use the internet.  In Crispin v. Christian Audigier Inc. 2010 U.S. Dist. Lexis 52832 (2010) the Court ruled that the Stored Communications Act (SCA) prohibited a power of subpoena to compel Facebook and MySpace to disclose plaintiff’s  private messages (non-posted, and to specific identified persons).  However, the Court remanded on the question of whether wall postings were discoverable under the SCA.  This 2010 decision, or one like it, is likely to be ultimately the subject of a published decision on the matter of SCA’s impact on the discovery of wall postings.
Bottom line:  the law is unsettled, but the best chance of getting social media information through formal discovery is to seek direct access and by a particularized discovery request anticipating the “privacy” objection by the employee.  Because the law is unsettled, the best approach is to enter into a stipulated restriction on the scope of search, and to agree to the confidentiality of the information except as necessary to the presentation of proof at trial or hearing. 

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