Score One for Plaintiffs in Battle Over Discoverability of Facebook

Posted on January 11, 2012 by Calli Varner

In the most recent decision to come out of Pennsylvania regarding the discoverability of social media, a Philadelphia judge denied a defendant’s request to gain access to a plaintiff’s Facebook page. 

In Martin v. Allstate Fire and Casualty Co., Case No. 110402438 (C.P. Phila. Dec. 13, 2011), the plaintiff, a pedestrian, was hit by a vehicle driven by a third-party tortfeasor.  The plaintiff collected the policy limit from the third-party’s insurer and then demanded the Uninsured Motorist coverage from her own insurer, the defendant.  During her deposition in October, defense counsel asked the plaintiff if she used Facebook, to which she responded that she did.  Upon asking for her password, defense counsel was met with an immediate objection.  In return, defense counsel filed a Motion to Compel such information.  Counsel for the plaintiff responded in opposition, arguing that any information on the plaintiff’s Facebook is not relevant to her claims or injuries and does not contradict her claims.  In a one-page, single-line Order, Judge Manfredi agreed and denied defendant’s Motion. 

This decision follows a November ruling from Judge Walsh, who determined that information posted on the plaintiff’s Facebook page was relevant and not privileged, and therefore discoverable.  See Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011); see also www.ediscoverylawreview.com/2011/12/articles/opinions/post-at-your-own-risk-pennsylvania-court-permits-discovery-of-information-on-personal-facebook-profile/.  Largent, along with two other defense-friendly decisions, Zimmerman v. Weis Markets Inc., Case No. CV-09-1535 (C.P. Northumberland May 19, 2011) and McMillen v. Hummingbird Speedway Inc., Case No. 113-2010CD (C.P. Jefferson Sept. 9, 2010) got the defense bar out to a 3-0 lead on the discoverability of information posted on Facebook.  While the Martin decision scores a big point for plaintiffs, it demonstrates that there is still a lot of uncertainty in the law surrounding the recent phenomenon of social media and its relevance to civil litigation. 

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Post at Your Own Risk: Pennsylvania Court Permits Discovery of Information on Personal Facebook Profile

Posted on December 5, 2011 by Calli Varner

A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant.  Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident. 

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.  Specifically, Defendant claimed that Plaintiff posted several photographs that showed her enjoying life with her family and a status update about going to the gym.  Defense counsel requested access to Plaintiff’s Facebook page, but Plaintiff refused to voluntarily disclose any information about her profile.  In response, Defendant moved to compel Plaintiff to disclose her Facebook username and password.  Plaintiff  opposed the Motion, arguing that the information sought was irrelevant, did not meet the threshold under Pennsylvania Rule of Civil Procedure 4003.1, and that access to her information would cause unreasonable embarrassment and annoyance.    

Court of Common Pleas Judge Richard J. Walsh began his opinion with a lengthy description of Facebook as the site that “helps you connect and share with the people in your life.”  Judge Walsh pointed out that the site has more than 800 million active users, 50% of whom are active on the site daily.  Although he acknowledged that Facebook has privacy settings, Judge Walsh emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. 

The Court then turned to the issue at hand - whether and to what extent such “private” information is discoverable in a civil case.  With respect to relevancy, the Court pointed out that Pennsylvania has a “slight” relevancy threshold pursuant to Pennsylvania Rule of Civil Procedure 4003.1.  Under this standard, the photographs depicting Plaintiff with her family and status updates about exercising at the gym are “clearly relevant” because they might prove that Plaintiff’s injuries do not exist or that they are exaggerated.

The Court found that Plaintiff’s Facebook information is not privileged.  Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information.  In addition, Pennsylvania law does not recognize a confidential social networking privilege.  As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”  Further, Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users because the information was sought directly from Plaintiff, who is not an ISP. 

Finally, the Court concluded that Defendant’s request was not unreasonably embarrassing or annoying and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail.  Since Plaintiff’s postings were never truly private, there could not be any unreasonable embarrassment in producing the postings in litigation.  The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information. 

As Judge Walsh points out, social networking is a recent phenomenon and these issues are just beginning to infiltrate the courts.  Although relatively few courts have spoken on this issue, the standard is becoming clear: Post at your own risk. 

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