Discovery • Social Network Sites • User Name • Password

McMillen v. Hummingbird Speedway, Inc., PICS No. 10-3174 (C.P. Jefferson Sept. 9, 2010) Foradora, P.J. (8 pages).

Where a person’s social network sites may contain information relevant to the prosecution or defense of a lawsuit and in consideration of the law’s general disapproval of privileges, access to those sites should be freely granted.

Plaintiff Bill R. McMillen, Sr. filed suit to recover damages for injuries allegedly sustained when defendant Josie Lee Wolfe rear-ended him during a cool down lap following a 2007 stock car race. Plaintiff alleged substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, vitality and inability to enjoy certain pleasures of life.

During discovery, defendant Hummingbird Speedway, Inc. in its interrogatories asked if McMillen belonged to any social network computer sites, and if so, that he provide the name of the site, his user name, login name and password. McMillen belonged to Facebook and MySpace but maintained that his user name and login information was confidential and would not be provided.

Defendants viewed the public portion of McMillen’s Facebook account and saw comments about a fishing trip and attendance at the Daytona 500 race in Florida. Defendants filed a motion to compel discovery, asking for McMillen’s user names, login names and passwords asserting that they may discover information pertinent to his damages claim and to determine if McMillen had made other comments which may impeach and contradict his disability.

The court noted that a party may obtain discovery regarding any unprivileged matter as long as it is relevant to the litigation. Nearly all relevant materials are discoverable because the commonwealth recognizes only a limited number of privileges.

McMillen asked the court to recognize communications shared among one’s private friends on social network computer sites as confidential and, therefore, protected against disclosure. He did not cite any binding or persuasive authority to support his position.

Evidentiary privileges are not favored and are to be narrowly construed. A new privilege will only be recognized if a claimant can establish: 1) that the communication originated in the confidence it would not be disclosed; 2) that the element of confidentiality was essential to fully maintain the relationship between the parties; 3) community agreement that the relationship must be diligently fostered; and 4) that the injury sustained to the relationship from disclosure of the communication outweighed the benefit of correctly disposing of the litigation.

McMillen could not satisfy those requirements. No person choosing these communications forums could reasonably expect that the communications would remain confidential as both sites clearly expressed the possibility of disclosure. The court saw little detriment to allowing litigants to become privy to those communications through discovery.

Defendants discovered posts on the public portion of McMillen’s Facebook page that he may have exaggerated his injuries. Gaining access to the private posts may help defendants prove either the truth or falsity of McMillen’s alleged claims. The court stated that the search for truth should prevail to bring to light relevant information that may not have otherwise been known.

The court ordered McMillen to produce his Facebook and MySpace user names and passwords and further ordered him not to delete or alter existing information on his accounts.