Discovery of Facebook Information in Employment Litigation

When someone asserts civil rights claims against their employer or former employer, they probably do not think about the type of “discovery” that will be taken in the lawsuit. Discovery is the compulsory disclosure, at a party’s request, of information that relates to the litigation. In this day and age, defense attorneys regularly request complete Facebook profiles from employment plaintiffs to dig up dirt. Here is one sample discovery request:

For each Twitter or Facebook account maintained by you, please produce your account data for the period between your date of hire with Defendant through the present. You may download and print your Facebook data by logging onto your Facebook account, selecting “Account Settings” under the “Home” tab on your homepage, clicking on the “Download a copy of your Facebook data” link, and then clicking on “Start My Archive.”

A Facebook archive includes not only public messages (i.e., what is on one’s “wall”), but also private messages that are sent between users. Many people would be surprised to learn their private messages with friends and family are subject to discovery in employment litigation. However, the trend in many courts is to allow such discovery requests, and to require employee-plaintiffs to burn their Facebook archive to a CD and turn it