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Can a Court Order You to Share Your Facebook Password?

Posted June 12, 2017

By Jonathan A. Karon

In civil cases as well as criminal cases, “anything you say can be used against you.” That’s also true of anything you put in writing. I always try to make sure to tell my clients that includes anything you post or tweet. I think most people understand (at least since Trump became President) that anything you tweet is public. But what you may not know is that anything you post on Facebook, regardless of your privacy settings, may end up in the hands of the other side in a civil case.

For years, many defense firms have requested that personal injury plaintiffs provide copies of relevant social media postings. Some have even gone so far as to request passwords and log in information for a plaintiff’s Facebook account. You might think that if you limited your Facebook content to your “friends” that courts wouldn’t allow defendants to see it. You would, however, generally be wrong.

These issues are usually decided on a case by case basis by a trial court judge. What that judge does is technically limited to the facts of that case and is not binding on another judge. So to some extent, whether you have to disclose your Facebook postings or possibly your password depends on who your judge is. A quick review of cases from around the country reveals some trends.

First, your privacy settings do not protect you from court ordered disclosure. For example, courts in New York, “have recognized that the postings on a Facebook account, if relevant, are not shielded from discovery merely because a party used Facebook’s privacy settings to restrict access.” Melissa “G” v. North Babylon Union Free School District, 48 Misc. 3d 389 (2015). It appears this view is shared by Courts around the country. In the intriguingly named case of In re Milo’s Kitchen Dog Treats Consolidated Cases, 307 F.R.D. 177 (2015), a Federal Magistrate Judge in the Western District of Pennsylvania agreed that “making a Facebook page “private” does not shield it from discovery if the information sought is relevant.”

The good news, to the extent that there is any, is that courts generally avoid making parties give up their Facebook passwords. Although there are cases where courts have ordered plaintiffs to provide defense attorneys with their Facebook log in and passwords, the current trend (and one which makes much more sense) appears to be only ordering disclosure of relevant Facebook postings. Defendants are required to precisely request specific postings relevant to issues in the case and plaintiffs are usually only required to produce copies of those postings. In the words of a Federal Magistrate Judge in Minnesota, “Just as the Court would not give defendant the ability to come into plaintiff’s home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant.” Holter v. Wells Fargo and Co., 281 F.R.D. 349, 344 (D. Minn. 2011).

So what are the takeaways? First, don’t post anything on-line you wouldn’t want others to see. This is probably good advice whether or not you’re a party in a lawsuit, but is essential if you’ve got a case. Second, don’t discuss your case with anyone other than your lawyer. Whether it’s a conversation with a friend, a post, a tweet or a letter, anything you say can be used against you. Finally, if your friends get angry because you won’t talk about your case, just blame your lawyer.

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