Student views on whether Facebook privacy settings should be respected in civil litigation are split.

 Just before Fall break the class was polled on the following question:

          "If a plaintiff in a civil lawsuit has one's privacy settings in their Facebook account set so that
          only their immediate family and close friends may view their posts, should the defendant
           be allowed to discover the posts in the litigation? If so, under what conditions?

Eight students answered "yes" and six students answered "no."

A common sentiment among the yes proponenets was that discovery should be allowed, but only where the information is relevant to the legal matter in controversy. Fishing expeditions should not be allowed.  One student equated Facebook posts with "notes" and opined that the same laws and considerations that would govern the discoverability of notes should apply to Facebook posts.  Another student observed that if access to Facebook posts is limited because of restrictive privacy settings a court order of subpoena should be required which would insure a judge makes a relevancy determination.  Many noted that Facebook is an inherently public forum, regardless of privacy settings.

The universal rationale for the no voters was that Facebook users, by utilizing their privacy settings to restrict access to a defined few, were creating an expectation of privacy that their communications would remain private, or at least restricted to teh intended audience, which expectation should be respected.  One student opined that "I see a Facebook account no differently than other private property such as files, your home or your car."

Just like the students, Courts have split on how this issue is resolved, although the trend clearly favors discovery once relevancy has been established to the court's satisfaction.