Facebook, The New Discovery Frontier?

A few days ago, I attended a deposition of a witness who we’ll just call John Doe. Before the deposition began, however, my co-counsel passed me a slip of paper that contained a copy of the witness’s facebook page. I was shocked. The witness–in not so eloquent terms–displayed a propensity in his facebook page to naturally dislike one of the parties. 

After the deposition, I researched whether facebook pages, if private, were discoverable in a civil action. What I discovered is that the courts have not even begun to address the various issues involved in producing facebook pages in response to discovery requests. And the few courts that have addressed the issue have come up with some rather unique and borderline bizarre remedies. For example, in Barnes v. CUS Nashville, LLC, the judge offered to “friend” the plaintiff so that he could review the contents of his facebook page. The Judge would then “promptly review and disseminate any relevant information to the parties.”

There is no published Washington court case dealing with the discoverability of facebook pages. Trial courts, therefore, have no standards to follow but the typical civil rules regarding discovery. But, as John Doe learned above, the best rule is not to post anything on facebook that you do not want to be marked as “Exhibit 1” in a trial.

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