Have you ever had to get a party’s Facebook information? While Facebook will cooperate in response to preservation requests or subpoenas from law enforcement, it will not respond to private party subpoenas to obtain the contents of a user’s Facebook account (like posts, photos, and messages).
Facebook encourages private parties to get user information through discovery. Facebook has a page called “Law Enforcement and Third-Party Matters,” which covers when and how you can get a user’s Facebook information. Essentially, you can only subpoena basic subscriber information (not the content of posts or messages).
If you are seeking Facebook content-like posts, messages, and photos in connection with litigation (for a party or nonparty), you should ask the party to give you the information using Facebook’s “Download Your Information” tool. Follow the instructions in the link to download a copy of your own Facebook data to get a feel for how it works.
This tool isn’t a failsafe solution. The biggest issue is that the “Download Your Information” tool does not keep track of deleted information or show that information even was deleted. Additionally, not all practitioners (and not all judges) know about the “Download Your Information” tool, so it may become your responsibility to educate the opposing party and the judge about the tool so you can get the information through discovery.
Narrowly Tailor Your Discovery
Even if you know about the “Download Your Information” tool, that doesn’t entitle you to everything in a user’s entire Facebook account. Judges won’t allow one party to go on a Facebook fishing expedition for relevant information. In the ICLE on-demand seminar Divorce Clients: Social Media, Smartphone & GPS Issues, James Andary and Shon Cook stress the importance of narrowly tailoring your discovery requests when it comes to a party’s Facebook posts.
For instance, if the opposing party has been posting pictures of herself out at the bars having “a good ole time” for the last three months, limit your request to photos in the Facebook account for the last three months. Make sure there is some evidence on the Facebook page to support a discovery request so you can show that what you are seeking is relevant and is not part of a fishing expedition.
If you encounter resistance, appropriate responses may include the following:
- motion to compel answers or for more specific answers
- motion for order for parties to exchange username/passwords
- motion for forensic exam of party’s hard drive
- motion for order to preserve electronically stored evidence
For more information, check out section 1.3 in the seminar materials for discovery tips related to social media sites, including Facebook, as well as texts and personal e-mails. For more general information, Chapter 10 of ICLE's Michigan Civil Procedure book covers discovery of electronic evidence.