Court allows Wal-Mart to subpoena Facebook and MySpace

Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D.Colo. April 21, 2009)

A couple of electricians were severely burned when the electrical system they were working on in an Aurora, Colorado Wal-Mart shorted out. They sued Wal-Mart over their injuries. One of the plaintiffs’ wives brought a claim for loss of consortium.

During discovery, Wal-Mart sent subpoenas to Facebook, MySpace and Meetup.com seeking information about the plaintiffs. The plaintiffs filed a motion for protective order which would have prevented the social networking sites from providing the requested information. The plaintiffs claimed that the information should be protected by the physician-patient privilege or, as for the loss of consortium claim, the spousal privilege. The court denied the motion and allowed the subpoenas.

The court held that an earlier protective order entered in the case (to which the parties had agreed) protected the confidentiality of the information. And the plaintiffs had put the purported confidential facts, i.e., the extent of the injuries and the nature of the consortium, at issue by bringing the suit. Moreover, the information sought by the subpoenas was reasonably calculated to lead to the discovery of admissible evidence and was relevant to the issues in the case.

It’s worth noting that the court might have had other reasons to deny the motion for protective order that it did not mention. A privilege of confidentiality is usually destroyed when it is disclosed to a third party. How could information on Facebook or MySpace still be secret? Unless Wal-Mart was only seeking private messages sent either between the spouses or one of the plaintiffs and a doctor, it would seem that most everything these sites would have would not be confidential in the first place.