Access to social media in civil litigation remains a Wild West in many respects. Parties don’t know what to ask for, so they ask for too much. When the other side refuses, the court often agrees because the request is so obviously overbroad. When it comes to discovery of social-media contents, the general rule of thumb is the narrower, the better.
But what about requests for passwords and user names? I think most reasonable minds agree that employers should never ask an employee for his or her Facebook password. So why are lawyers doing it? Beats me, man. It’s a terrible idea, no matter who makes the request.
A recent case in Louisiana seems to support this conclusion. In NOLA Spice Designs, LLC v. Haydel Enterprises, Inc., the defendant sought to compel the plaintiff-entity and its principal to produce “passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records” The court had little trouble concluding that the requests were overly broad and “far exceeded” what was considered proportional under the discovery rules.
The court acknowledged that the plaintiffs had “no protectable privacy or confidentiality interest in material posted or published on social media.” Nevertheless, the court explained that there was no reason that the plaintiffs should be required to give total access to their adversary, thereby allowing the defendant to roam around and, potentially, engage in “mischief.”
The court’s analysis is correct. There is no basis to require a party to turn over social-media passwords during litigation. In fact, it’s a terrible idea to do so. And, in my opinion, lawyers are best advised not to request passwords in the first place. Even if the other side is willing to turn it over, you risk any number of bad outcomes, such as spoliation of evidence.
One court feels at least as strongly as I do on the subject. In Chauvin v. State Farm Mutual Automobile Insurance Co., a federal court in Michigan affirmed an award of sanctions against a defendant due to its motion to compel production of the plaintiff’s Facebook password. The court found that the Magistrate Judge did not err in concluding that the content that the defendant sought to discover was available “through less intrusive, less annoying and less speculative means” even if relevant. Furthermore, there was no indication that granting access to the account would be reasonably calculated to lead to discovery of admissible information. No. 10-11735 (S.D. Mich. Oct. 20, 2011).
NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013).