Discovery is critical to any civil lawsuit. This is the phase in which the parties request documents, ask question, and depose the witness to establish the facts in the case before trial. While discovery is generally far-reaching, just how far does it go? With Pennsylvania trial courts split on how to handle social media discovery requests, you may want to think twice before updating that status or posting that picture.
With over 500 million active users, the escalating popularity of Facebook, MySpace, Twitter and other social media sites has generated a profusion of potentially discoverable material. The question remains, should the pictures and text found amidst these social networks be discoverable? One arguing against access could argue that postings on social networks are protected by expectations of privacy. Conversely, another could argue that these postings are posted precisely with the intent and knowledge that they are for others to see and therefore cannot carry an expectation of privacy. Similarly, if what we are seeking is the truth, shouldn’t all material relevant to a lawsuit be discoverable? Both sides on this issue have persuasive arguments, but on which side are the Pennsylvania courts?
At the onset, Pennsylvania trial courts remain somewhat split as to the extent to which one party may gain access to information on an opposing party’s social network site. Given the case law thus far, the current trend is in favor of the discovery of such information. The following two cases illustrate the parameters of social media discovery as they stand today.
Social Network Postings Discoverable: McMillen v. Hummingbird – Jefferson County, PA (Sept. 2010). In this personal injury case, the plaintiff sought damages from defendants for the injuries he suffered when his car was rear-ended. The public portion of plaintiff’s Facebook account contained comments about a fishing trip and attending other events that would contradict the plaintiff’s contentions of limitation in his activities of daily living as a result of his accident-related injuries. As such, defendants sought an order compelling plaintiff to disclose his Facebook and MySpace user names and passwords so that defendants could “determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damage claims.”
The court found that the social network postings were in fact discoverable, holding that there was no “social network site privilege” in Pennsylvania. The court reasoned that the very purpose of these social media networks are to connect with friends and meet new people. Thus, while it is conceivable that one could use them as forums to discuss personal and private matters, it would be unrealistic to expect that such disclosures are considered confidential. The court concluded that where there is an indication that one’s social media sites contain information relevant to a lawsuit, access to those sites should be freely granted.
Access to Social Network Pages Denied: Piccolo v. Paterson – Bucks County, PA (May 2011). In another personal injury case, the plaintiff suffered severe lacerations to her face when hit with the airbag during an auto accident. The plaintiff produced pictures of her face following the accident, and permitted the defense to take photographs of her face on numerous occasions after scar reversion surgery. Later in the discovery phase, the defense sought a court order to be accepted as a friend on plaintiff’s Facebook page in order to view her status updates and pictures.
Unlike McMillen, the Piccolo court denied defendant’s request for access to plaintiff’s Facebook page. It appears from the case that the focus of the plaintiff’s injuries in Piccolo were on her facial scarring injuries as opposed to musculoskeletal injuries and the impact of those injuries on the plaintiff’s activities of daily living. Therefore, its plausible that the Piccolo court found that access to plaintiff’s Facebook page to obtain even more photos of the plaintiff’s face was overkill in light of the prior access to photos the defense was given.
While the jury is still out on this emerging issue, given the current trend in favor of discovery of information posted on social networks—poster beware. Discovery requests pertaining to a party’s social networking activities are becoming the norm in Pennsylvania Civil Litigation Matters. Moreover, the opposing party can also seek a “litigation hold,” or a court order preventing an opposing party from deleting any postings post-dating the accident. If this order is granted, all postings must be left on the social media site for the duration of the lawsuit. Should they be deleted, the opposing party is entitled to an adverse inference jury instruction at trial. All the more reason to think twice before you post.