ARE FACEBOOK POSTS DISCOVERABLE?

By Justin Starin

In September 2015 Facebook had on average “1.01 billion daily active users.”[1]  It is mind-boggling just how much personal information is shared each day on social media.  So the question is: Are Facebook posts discoverable in a Montana lawsuit?  It is safest to assume the answer is yes.  This means that each side of a lawsuit must reveal to the other side his or her Facebook posts when asked.

While the Montana Supreme Court has yet to address the issue, recently the Montana’s Workers’ Compensation Court concluded: “that no social media privilege exists and that private Facebook posts are discoverable.” [2] Before the ruling, the Workers’ Compensation Court reviewed law and commentary from several other sources, one of which wrote:  “A person who uses privacy settings on Facebook is no different than a person who shares letters only with his or her closest friends.  If the information in those letters is relevant, it must be produced.  The person with custody of the letters cannot refuse to provide them on the grounds that they were meant to be a secret.”[3]

As time passes, Montana’s courts will likely develop a body of law surrounding social media that will give us more direction, but for now, it is safe to assume that Facebook and other social media posts are discoverable.

[1] https://newsroom.fb.com/company-info/ (Nov. 23, 2015).

[2] T.B. v. Mont. State Fund, 2015 MTWCC 18 (Sep. 29, 2015).

[3] Id.

CategoryCivil law

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