Bones Law Firm

The Facebook era is definitely ushering in new angles of litigation. Law firms are beginning to see new types of discovery requests for everything from divorce and child custody to auto accident cases. Take a look at the following standard discovery request. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 14: Please produce a download of your complete Facebook Profile. To do so, go to the Account Setting page, and then click the "learn more link beside Download Your Information. ...From there, click the download button. Once Facebook verifies your identity, an email will be sent to you advising that a zip file is ready for download. Once the zip file is received, forward it to opposing attorney’s e-mail address. You are hereby put on notice that deleting anything from your account from this point forward (including but not limited to posts, status updates, mail messages, photographs, friends, links, blogs, etc.) is considered spoliation of evidence and your counsel has ethical obligation to ensure that all evidence is preserved. These types of requests have most certainly been the topic of many discussions. Just last year, an attorney in Virginia was sanctioned six figures for having his client delete info/pics from his Facebook account. Is some or all of your Facebook account private or semi-private? Can anyone on the internet view the account, or only a certain group of people, like Facebook friends or relatives? If the account is not in any way private, you have already made the information public. However, there are several arguments that can be made to avoid having to turn in the account. Certainly an invasion of privacy argument can be made. All state constitutions contain an express right to privacy that is even broader than Federal protection. One can argue that production is not required until the Defendant’s make a threshold showing of relevancy of the Facebook account. Here is a very relevant opinion that has been issued from Michigan and New York on this issue. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich.2012)- Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Ratherthere must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account. What are your thoughts? Do you feel safe posting anything you wouldn’t want certain people to eventually see or will you take extra precautions?