As the popularity of Facebook continues to rise, so does the risk that what you post on Facebook may be used against you in court. In the case of McMillen v. Hummingbird Speedway, the court ordered the plaintiff to provide the defense with their personal Facebook and Myspace account username and password information so that the defense could comb the plaintiffs account for possible impeachment evidence.
The McMillen case centered on a racecar driver that was rear-ended during a cool down lap in a stock car race. Mr. McMillen alleged substantial injuries in his lawsuit. He then proceeded to comment on Facebook about a fishing trip he went on, as well as a trip to go watch the Daytona 500. The defense asked the court to require McMillen to provide his account information so that they could "determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claim."
The court relied heavily on Pennsylvania Rule of Civil Procedure 4003.1, which allows for wide-ranging discovery for information that is directly or peripherally relevant to litigation, so long as the evidence is not otherwise privileged. McMillen requested that the Facebook and Myspace information be deemed privileged because the communications were private and intended to be confidential.
The court denied McMillen's request to make the communications privileged, reasoning that "Facebook, Myspace, and their ilk are social network computer site people utilize to connect with friends and meet new people. That is, in fact, their purpose..." The court went on to say that "while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential." Also factoring in the courts decision were the policies of Facebook and Myspace that state that information posted on their sites could be disclosed by other users and that the communications did not result in an attorney-client or similarly privileged communication.
While the legal battle over the admission of Facebook information as evidence is far from over, the McMillen ruling is a clear victory for defendants and should come as a warning to plaintiffs about the information they share over social network sites while in the course of a lawsuit.
