A fascinating case from Connecticut may shake up the eDiscovery world. About a month ago, Judge Kenneth Schluger ordered that soon-to-be-divorced couple Stephen and Courtney Gallion exchange the login information for their Facebook and dating websites.
Like many recent examples from the case law, the reasoning adopted by the court was that the content found within these accounts speaks directly to a matter before the bar. Namely, Stephen Gallion is alleging that such content raises questions of parental fitness, something that speaks directly to the issue of custody in this divorce case, according to his divorce attorney Gary Traystman.
The reason this was elevated to the judge is that a prior agreement between the parties to share these account credentials broke down after evidence arose (according to Traystman) that Courtney Gallion had texted a friend, requesting that the recipient log into her accounts, delete some messages, and change some passwords. The judge issued an injunction against such misbehavior, and he then ordered the parties’ attorneys to exchange passwords for such accounts held by both spouses as a furtherance to the discovery process.
Interestingly, this judicial order violates Facebook’s terms of service. This raises questions of conflicting guidance, among others, though the parties are undoubtedly going to err on the side of listening to a judge. As traditional notions of privacy continue to morph within the legal landscape, we will undoubtedly see more of these cases…so be careful what you put into your digital archive—no matter how private you believe it to be, it is both permanent and potentially discoverable.
Forensic Update 