Social Media Passwords and Account Content are Discoverable

Social-media usage and privacy interests continue to be a hot litigation topic. An individual’s LinkedIn, Facebook, and MySpace accounts, as well as their text messages and tweets, can be pay dirt for litigators looking to advance or defend a claim. Accordingly, disputes about formal discovery requests for an opponent’s social media profile and similar information are making their way to court. We’ve previously posted about Romano v. Steelcase, in which the court compelled a plaintiff to produce copies of her Facebook and MySpace profiles. In resolving the dispute, the court held that precluding plaintiff’s employer from obtaining the information “would condone [her] attempt to hide relevant information…”

Recently, a Pennsylvania court came to a similar conclusion, in McMillen v Hummingbird Speedway, Inc. McMillen sued Hummingbird Speedway, Inc. (“Hummingbird”) for personal injuries he allegedly sustained when he was rear-ended during a cool down lap after a 2007 stock car race. During discovery, Hummingbird asked McMillen whether he belonged to any social network computer sites and, if so, that he provide the name of the sites, his user names, and his login information, including any passwords. McMillen answered that he belonged to Facebook and MySpace, but he refused to provide any other information.

Hummingbird eventually filed a motion to compel McMillen to provide all of the information Hummingbird would need to access McMillen’s social media accounts. In his opposition to the motion, McMillen argued that his communications with friends via social media sites were private and thus protected from disclosure. According to the court, McMillan was essentially asking the court to recognize an evidentiary privilege for such communications. The court declined, reiterating that there is no “social media privilege” recognized by Pennsylvania’s court or legislature. As a result of the court’s decision, McMillen was ordered to give his opponent his Facebook and MySpace usernames and passwords. The court further ordered that McMillen shall not take any steps to delete or alter existing information and posts on his social media accounts.

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).

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