In a lawsuit in Houston, the defendant has filed a writ with the Texas Supreme Court seeking access to a plaintff’s Facebook and MySpace entries. The defendant wants the entries because they represent a "compilation" of who the plaintiff is. See petition for writ of mandamus. In Re Magellan Holdings, LP And Magellan Midstream Holdings, LLC, No. 01-11-00373-CV.
The defendant was allowed discovery regarding entries which occurred prior to the plaintiff restricting access. But, once the plaintiff restricted access to friends, the trial judge refused discovery from that point forward. Writ of mandamus is the state equivalent of an interlocutory appeal. So, it appears that the defendant sees the Facebook and MySpace discovery as critical to its case. The Houston court of appeals affirmed the trial judge’s refusal to allow the discovery. This may be the Texas Supreme Court’s first encounter with social media discovery.
The plaintiff was injured in an accident such that he cannot care for himself. The defendant’s argument is that if the plaintiff can maintain wall postings on Facebook and elsewhere, then he is not as mentally incapacitated as he claims. So far, the few cases that have addressed the issue generally prohibit discovery without clear relevance to some specific issue. See my prior post. A "fishing expedition" type request will not suffice to gain access. But, as described in my prior post, if a party can show emotional state is truly in issue, or as here where mental state is truly in issue, then the opposing party will probably gain access to your "private" Facebook information.