Another Litigant Finds Out the Hard Way That What you Say on Facebook Will be Used Against You

[Post by Venkat Balasubramani]

In the same way that people put things in emails without realizing that such information can be obtained in the course of a lawsuit or may otherwise come to light, people do the same thing with their posts to social networks. Facebook is a prime example, and another litigant recently found out that courts do not hesitate to allow an opponent to discover the details of their Facebook page.

Keith and Jessica Largent were involved in an accident in 2007. They sued the other drivers. During Ms. Largent’s deposition, defense counsel realized that Ms. Largent had a Facebook profile and she “used it regularly to play a game called FrontierVille.” Largent refused to turn over any information about the account, and defense counsel asked the court to force her to do so.

Largent argued that granting her opponent access to her Facebook account was akin to “asking her to turn over . . . her private photo albums and requesting to view her personal email,” and would cause embarrassment and annoyance. The court rejects these arguments, and forces Largent to turn over the account password.

In the course of the opinion, the court makes a statement that highlights a misconception about social networking and evidence:

Only the foolish or uninitiated could believe that Facebook is an online lockbox for your secrets.

This is true. In fact, if you had a diary where you wrote down your thoughts, this would probably be discoverable in litigation. The other side would have to make a “good faith” argument that what’s contained in the diary is relevant to the dispute, and given the type of information that most people commonly write in their diaries (their innermost thoughts), this should not be difficult.

Of course, if you had a diary, the other side may not find out about its existence in the first place, but this is much less of an issue when it comes to Facebook or another social networking profile. (Note: accessing Facebook through someone else’s user profile is a violation of Facebook’s terms of use, but that does not stop this particular judge from ordering the password turned over.)

More about the case from law.com (No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says) and a link to the ruling here: Largent v. Reed, 2009-1823 (Pa. Ct. of Common Pleas; Nov. 8, 2011).

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