Facebook is ripe for privacy rulings by the courts
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Lady Justice often is depicted as blindfolded, holding a sword in one hand and hoisting a set of scales in the other.
Nowadays, she could just as easily be carrying a laptop.
In a brave new world of electronic or "e-discovery," courts across the country must determine where to draw the line between personal privacy and an individual's right to collect evidence.
Are photos or comments posted on Facebook subject to the same privacy standards as, say, a defendant's tax records?
"It's one of the hottest issues around," said David Cohen, the practice group leader for Reed Smith's records and e-discovery team.
One of the differences between paper files and electronically stored information such as emails, social media posts and the like -- known as "metadata" -- is that electronic data contains information such as the date and time the documents were created or changed.
"I've seen divorce cases where the parties have sought access to one another's Facebook accounts in an effort to find information that would reflect upon a parent's ability to serve as a custodian," said Rhonda Wasserman, a professor at the University of Pittsburgh School of Law.
Previously, at Kirkpatrick & Lockhart, Mr. Cohen co-founded an e-discovery group. It was one of a handful of firms in the country, along with Seattle's Preston Gates & Ellis. The two firms merged to form K&L Gates in late 2006.
Mr. Cohen noted that in 2006, a federal rules amendment was passed to help guide courts in handling requests for electronically stored information. He served on a committee to recommend changes in state court rules; the amendment recently was signed into law by the Pennsylvania Supreme Court and goes into effect Aug. 1.
Pennsylvania is the 36th state to adopt procedural rules specific to e-discovery.
Chairing the committee was Judge R. Stanton Wettick of Allegheny County Common Pleas Court. In a recent civil case, Judge Wettick denied both parties' requests to access each other's Facebook accounts, then issued a 20-page opinion discussing the definition and evolution of e-discovery.
In that case, the plaintiff wanted access to the defendant's Facebook account. He argued that relevant information might be there pertaining to defendant's actions around the time of an automobile accident.
The defendant countered with his own request to have access to plaintiff's social media account. Judge Wettick determined such discovery would be unfairly invasive, concluding, "In this case, I denied the discovery requests of both parties because the intrusions that such discovery would cause were not offset by any showing that the discovery would asset the requesting party in presenting its case."
Some judges are allowing broader access to e-discovery. Ms. Wasserman and Mr. Cohen said they had read about cases in Pennsylvania and nationally in which parties were granted "friend" status or given log-in information to explore an adversary's Facebook page.
The definition of privacy has been tested by social media sites and is still open to interpretation around the court system.
In his opinion, Judge Wettick cited a 2010 case, in which two stock car racers collided during the cool-down lap.
The plaintiff sought damages from the corporate owner of the track, claiming "substantial injuries including possible permanent impairment, loss and impairment of general health, strength and vitality and on ongoing inability to enjoy certain pleasures in life."
The defendant looked up the public, non-password-protected part of the plaintiff's Facebook page and discovered comments that indicated the latter wasn't so badly hurt -- he'd posted evidence of being on a fishing trip and attending a car race as a spectator.
The judge in this case ordered the defendant be given the Facebook log-in information to determine if any other relevant information was there.
No judge has ever liked the idea of a "fishing expedition," where adversaries conduct unfocused searches. What has changed is the ease with which adversaries can fish.
"Maybe some of this information, or most of this information, was out there, but it was a lot harder to gather than it is today," Mr. Cohen said. "With a few keystrokes, you can find who is living in your neighborhood or who has been charged with this or that.
"There's lots of information you can find out now because pleadings are online. Nobody was going to go to the trouble in the old days to use the right to public access to actually look up every domestic relations complaint, but now it's a lot easier."
Ms. Wasserman noted there can be a big difference between information presented as evidence in paper form and through social media.
"People don't put their tax records online to share with others, and people don't got to a psychiatrist in a public forum," she said.
One law professor said he fears the issue of e-discovery merely points to a larger, more ominous problem in protecting privacy.
"I think the judges who have allowed that [access] have done a real disservice to everyone," said Derek Witte, a professor at the Thomas M. Cooley Law School in Michigan and "of counsel" to Talcott Franklin PC.
In an upcoming Law Review piece, Mr. Witte suggests the federal Stored Communications Act be scrapped because it is ineffective. Designed in the early days of the Internet to protect privacy as it pertains to communications -- including letters and email -- it has the potential to leave unprotected vast areas of data, including photos or the entire contents of a hard drive stored remotely in a cloud-based location.
"We are bleeding data by saving our own emails, correspondence, records, songs and books on other people's computers," he wrote in the review.
He argues that someone involved in a legal action might not even be in control of the information that he or she is charged with handing over in the e-discovery process; deleting those bachelor party photos from your site did not actually kill them.
"What you have on your Facebook page is different from what Facebook has."
Mr. Witte added that the more things promise to change, the more they should stay the same: "The rules of discovery have gotten us this far, where it is a party in litigation's duty, at the risk of being held in contempt of court, to hand over everything that is relevant to the lawsuit.
"Just because we now have easy technology that allows them to do it themselves really shouldn't change that analysis."
First Published July 16, 2012 12:00 am