New Jersey lawyer Natalie F. Dallavalle notes that courts in New York and Pennsylvania have issued orders that parties to a legal action must make the information on their social networking websites available to the other side:
In McMillen v. Hummingbird Speedway, Inc., a personal injury action, the defendant questioned in a set of interrogatories whether the plaintiff belonged to any social networking sites and to provide plaintiff’s usernames, login names, and passwords. McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010). Upon reviewing the public portion of plaintiff’s Facebook account, the defendant discovered comments relating to relevant facts surrounding the litigation. Plaintiff’s counsel claimed confidentiality or privilege to the information. Defendant then moved to compel discovery, arguing that the areas to which they did not have access could contain further comments which would impeach or contradict plaintiff’s disability and damages claims. …the court held that access to one’s social networking sites is not protected by any privilege. As a result, plaintiff was compe
Likewise, in Romano v. Steelcase Inc. a New York Suffolk County Supreme Court ordered plaintiff to sign an authorization permitting the defendant to access her Facebook and MySpace accounts, including any records previously deleted or archived. Romano v. Steelcase Inc., N.Y.S.2d 650 (N.Y. Sup. Ct. 2010). In a personal injury action, defendant found pictures of plaintiff on her Facebook and MySpace accounts that yielded relevant information regarding damages and the extent of plaintiff’s injuries. Acting Justice Jeffrey Arlen Spinner rejected plaintiff’s arguments that it violated her Fourth Amendment right to privacy. In analyzing the websites privacy policies, the court found users are aware that they post content to the sites at their “own risk.” …
Off the top of my head, I’m not aware of any cases in Canada and/or involving family law where such orders have been issued. But, with Facebook posts coming up in more and more family cases, I wouldn’t be surprised if it happens soon. The lesson, once again: don’t post anything on the internet, even in “private,” which may come back to haunt you.