Privacy v. Discovery: Unique Solutions

    August 21, 2012

    In part seven of Privacy v. Discovery: The Battle for Social Media Information, I analyze cases where courts have created unique solutions seeking to balance each party’s interest in privacy and discovery without setting precedent one way or the other:

    In Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, 2010 WL 2265668 *1 (M.D. Tenn. 2010), the defendant subpoenaed a slip-and-fall plaintiff and her friends’ Facebook pages for any messages or photographs discussing or depicting the plaintiff dancing atop the bar prior to her injuries.

    When the parties could not reach an agreement on the scope of social media discovery, the judge created his own Facebook account solely for the case. In his chambers, he reviewed the photographs, captions and related comments. After providing the parties with the pictures that the judge deemed relevant to the case, including the metadata provided by Facebook, he stored the material under seal pending their use at trial.

    The court in Gallion v. Gallion,  2011 WL 4953451 (Conn. Super. Ct. 2011), arrived at another unique solution when it ordered the lawyers representing a couple in a divorce proceeding to exchange passwords to their clients’ Facebook and dating website profiles. The court provided counsel with specific instructions to ensure each party would not obtain access to the other’s personal online information. This procedure allowed the lawyers to discover relevant information to support their claims without exposing the clients to the embarrassment of placing their entire profiles in the hands of their former spouses.

    Barnes and Gallion illustrate the blurred line separating privacy and discovery. In Barnes, the judge took it upon himself to sort through the social media site content to ensure the parties’ access to relevant information.While this method provided an unbiased review and distribution of information, it precluded the lawyers from exercising their own judgments about what social media content could be relevant and helpful to their clients’ case. It also exposed the plaintiff’s and her friends’ entire social media profiles to the judge, including portions irrelevant to the slip-and-fall case.

    In Gallion, the court removed itself from equation and placed the burden of balancing discovery and privacy on the lawyers. By shifting responsibility to officers of the court, the judge guaranteed that each party’s attorneys could collect the social media information they deemed relevant without exposing the opposing party’s sensitive personal information to the other party. On the other hand, the opposing party’s lawyers were able to view information that exceeded the scope of what may have been discoverable through traditional means, given that the other side’s client’s entire social media profiles would generally not be relevant to the case.

    Each of the unique solutions implemented in Barnes and Gallion underscores the notion that the boundaries of discovery and privacy in social media are not black and white. While these cases offer a few examples of how a court may balance privacy and discovery, neither solution was perfect because of the uncertainty inherent in this evolving gray area.

    In my final post tomorrow, provide commentary on the uncertainty inherent the crossroads of privacy and discovery in the realm of social media.  A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published in Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

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