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BARLEY: How private are Facebook privacy settings?



For better or worse, the use of social media has grown astronomically in recent years, and social media has become a major part of our lives.  With this growth of social media, numerous questions have been presented on how social media will interact with the courts.

In the recent personal injury case, Higgins v. Koch Dev. Corp., 2013 U.S. Dist. LEXIS 94139 (S.D. Ind. July 5, 2013), the District Court was faced with determining the discoverability of the plaintiffs’ Facebook information.  In Higgins, several girls allegedly suffered serious injuries from excess chemicals in the water at a water park.  These severe injuries allegedly prevented the plaintiffs from enjoying active lifestyles and impaired their capacity for future earnings.  During depositions, the defendant discovered that the plaintiffs maintained Facebook pages.  Immediately thereafter, the defendant served requests for production on the plaintiffs requesting their Facebook information.  The plaintiffs objected stating that the request violated their privacy, the privacy of non-parties and claiming that the requests were overly broad and not reasonably calculated to lead to the discovery of admissible evidence.  In response, the defendant filed a motion to compel.

In making its ruling on the motion to compel, the district court evaluated two issues.  First, whether the defendant had made a prima facie showing that the materials would lead to the discovery of admissible evidence.  Second, whether the privacy rights of parties or non-parties would be violated by disclosing the information.

With regard to the first issue, the defendant claimed that the plaintiffs’ Facebook content may reveal relevant information as to the extent of the plaintiffs’ injuries and how those injuries impacted the plaintiffs’ lives.  Because the extent of the plaintiffs’ losses directly impacted the appropriate damages award, the district court found the defendant had made the prima facie showing.

In determining whether the privacy rights of the plaintiffs and non-parties would be violated, the plaintiffs asserted that the request violated their right to privacy because they had their Facebook accounts set on the highest level of privacy.  However, the defendant had shown the relevance of the request and had taken certain steps to avoid unduly invading the plaintiffs’ privacy.  Therefore, discovery of the plaintiffs’ Facebook information would not violate their right to privacy.  In ruling on the privacy rights of non-parties, the district court held that photos of non-parties that “tag” the plaintiffs are considered in the possession, custody or control of the plaintiffs.  Therefore, the court found a limited expectation of privacy for non-parties when they “tagged” pictures of the plaintiffs.

In conclusion, the district court determined that the defendant had established a prima facie showing that the Facebook material would lead to the discovery of admissible evidence and that privacy settings of Facebook could be negated by narrowly tailored requests and taking sufficient measures to avoid unduly invading the plaintiffs’ privacy.  However, as this novel area continues to evolve, so will the standards and guidelines used by the courts.

Matthew Barley is a lawyer as a part of the Commercial Litigation Group and General Litigation Group for Butler Snow Law Firm in RIdgeland.


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