By Roger Horgan
When a party is involved in a lawsuit he, she, or it (in the case of a corporation), is subject to the process known as Discovery. This process is essentially an exchange of information between and among the parties to a lawsuit the purpose of which is to permit the parties access to information held by other parties and nonparties. A plaintiff or a defendant is entitled to obtain information through discovery which is relevant to the dispute between the parties, and also to obtain information that may lead to relevant information. The scope of discovery is therefore extremely broad, and it is difficult to convince a judge that a party should be permitted to withhold information exactly because the Rules of Civil Procedure favor a full exchange of information before trial.
Given this general approach to pretrial discovery, it is not surprising that attorneys for both plaintiffs and defendants have attempted to obtain not only public Facebook information, but also that information which a party attempted to limit to only his or her "Friends." It is equally unsurprising that the courts have, with some limitations, permitted discovery of those portions of Facebook that were originally intended to be nonpublic. While this may seem unfair and perhaps even offensive, keep in mind that either party could compel your "Friends" to testify at a deposition if they knew who your Friends were, and if there were reason to believe that your Friends had information relevant to the lawsuit.
It is now routine for the parties to seek nonpublic Facebook information from one another, and it is likely that a court will require such disclosure so long as the party seeking it has a reasonable argument that the disclosure is likely to lead to relevant information. These requests often stem from a party's suspicion that the other party has said one thing in testimony or court documents, and something altogether different on Facebook. A defendant in a case in which a person is claiming severe physical injury would be very interested in seeing a picture of that person engaged in strenuous physical activity, such as a sport, which was posted on Facebook. Similarly, the victim in an auto accident would like to know whether the defendant has admitted his or her responsibility in Facebook postings.
As long as a party is able to advance a reasonable argument that the private postings on Facebook are likely to contain information relevant to the lawsuit the courts are likely to require access to those private segments. Keep in mind that it is often the public segment of Facebook which provides the clue that the nonpublic portion contains relevant information. So, if the accident victim makes reference to a ski trip in the public portion, the court is likely to permit discovery of the nonpublic portion, assuming that there may be more, directly relevant evidence in the private portion. The courts can be expected to place reasonable limitations on that access, such as restricting access to a particular time period, but it would be foolish to believe that what one posts on the private section of Facebook is forever private.
Every lawyer instructs the client to refrain from discussing the case with anyone except when the lawyer is involved. The reason for this is that what a litigant says to another person about his or her case is relevant, and the opposing side will be entitled to learn what the litigant has said to that person. The same rules apply, generally, to Facebook postings, and the same legal advice would also apply. Don't talk about your case without your lawyer's knowledge and participation, and be sure to let your lawyer know if you have already done so, especially if that conversation was on the internet!