Judge Creates Facebook Profile to View Plaintiff's Facebook

    December 6, 2011

    Judges are often faced with the difficult task of juggling privacy interests with a party’s need for discovery of evidence. In the context of social media evidence, that difficulty is magnified because many litigants use social media to chronicle the intimate details of their personal lives, often behind a virtual wall of privacy features. Therefore, a judge who orders that social media information be turned over runs the risk of exposing a litigation’s private information that would previously be cloaked under a certain expectation of privacy. A unique solution to this dilemma was recently offered in Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

    In Barnes, the plaintiff sued for injuries suffered at the infamous Coyote Ugly Saloon after slipping, falling, and striking the back of her head.  Coyote Ugly subpoenaed the plaintiff and her friend’s Facebook pages for information including any photos depicting the plaintiff dancing atop the bar.  After quashing the subpoenas for privacy and enforcement considerations, the Nashville judge crafted a novel solution to balance the parties’ competing interests in determining whether discoverable information exists while at the same time protecting personal privacy concerns:

    the judge created his own Facebook account “for the sole purpose of reviewing photographs and related comments in camera [in the judge’s private chambers]. . . and disseminat[ed only] relevant information to the parties.”

    Upon reviewing and disseminating the relevant information, the judge closed his Facebook account. This decision, in addition to the exchange of Facebook passwords to the opposing parties’ attorney discussed yesterday, are two recent examples of the judiciary composing creative solution to unique problems created by evolving social media activity.

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