Get Outta My Face[book]: The Discoverability of Social Networking Data and the Passwords Needed to Access Them

Under what circumstances can a social network user be compelled to turn over his or her user identification and password in civil litigation? In three recent cases, courts attempted to answer this question with varied results. The New York Supreme Court Appellate Division refused to allow discovery of private Facebook information in McCann v. Harleysville Insurance Co. because the discovery request was not sufficiently tailored to reach discoverable information. Soon thereafter, the same court allowed discovery of similar material in Romano v. Steelcase, Inc. based on the level of publicity of the social networking account. In McMillen v. Hummingbird Speedway, Inc., the Pennsylvania Court of Common Pleas allowed discovery of private Facebook information based upon similar considerations as the Romano court. The McMillen court questioned whether the plaintiff should be allowed to block discovery by asserting an evidentiary privilege and determined that no reasonable expectation of confidentiality exists on social networking sites. The court determined that as long as a person’s social network sites contain information relevant to the lawsuit, courts should allow litigants to utilize “all rational means for ascertaining the truth.” This Article first summarizes the potential bases to prohibit discovery of social networking information and communication. It then examines the recent case law and identifies the level of protection courts are willing to afford social networking communication and the login information needed to access them in civil discovery