The Challenge of Discovery
of Facebook Content In Pennsylvania.
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The rapidly evolving milieu we know as the internet, particularly social media, has produced countless legal issues. In the realm of personal injury litigation, discovery of Facebook page and profile content has great potential to radically alter the complexion of a case. In most cases an individual's Facebook profile contains their name, city of residence, relationships, school affiliations, interests and "likes". A Facebook page can also include photographs, videos and postings relating an individual's recent activities, viewpoints and values.
All users of Facebook can access the "public" portions of another users profile, to which there is inherently no reasonable expectation of privacy. However, not surprisingly, objection is often raised to a request for the information on the "non-public" portion as this is most likely where the "smoking gun" will be found. Pennsylvania trial courts have issued a handful of non-precedential written opinions, which provide guidance in determining when the information on the non-public portion of an individual's Facebook page (as well as pages on other social network sites) is discoverable.[1]
As with all discovery, the threshold question is relevance. Given the nature of the content posted by most social network users, one would think that any and all content is relevant or, at a minimum, may lead to the discovery of relevant evidence, and is therefore discoverable. Yet, to gain access to the non-public portion of a Facebook page, more is required. Articulation of "some facts that suggest relevant information may be contained within the non-public portions" is required. Trail v. Lesko, 1021 Pa. Dist. & Cnty. Dec. LEXIS 194, *19 (Allegheny County Court of Common Pleas). This approach is seemingly justified by the argument that it prevents "fishing expeditions". However, paradoxically, the courts rely primarily upon the public content contained on the party's Facebook page to determine whether discovery of the non-public information is discoverable. Therefore, if a party's Facebook users page or profile is not public, it is impossible to articulate the requisite facts to support such a request early in discovery. Under those circumstances, specific questions must be posed at depositions regarding how the individual uses Facebook and whether photographs, notes, messages or any other information relevant to the issues in a case have been posted or communicated.
Once access to non-public information is granted, other related matters must be addressed in detail in order to avoid further disputes. These issues include: Will actual access to the account be permitted or will hard copies of the content be produced? If hard copies are to be produced, who decides what is relevant and responsive to the discovery request at issue? If access to the account is granted, will the use of logins and passwords be restricted in time and scope? How long of a time period can be scrutinized? Judge James P. Cullen of the Lancaster County Court of Common Pleas, recently addressed these issues in the case of Perrone v. Lancaster Regional Medical Center, No. CI-11-14933, by ordering the parties to hire a "neutral forensic computer expert" to review a party's Facebook page and extract the postings and information relevant to the issues in the case as agreed upon by the parties. According to Judge Cullen, the cost of the process and the expert is to be borne by the party seeking the information. In Perrone, as in most instances where this type of information will be sought, it was the defendant who requested the information and thus the defendant who bore the cost.
While it is clear that Pennsylvania's trial courts have developed a consistent analysis to evaluate the propriety of granting access to Facebook information, this analysis must be applied on a case by case basis. It remains to be seen how a Pennsylvania appellate court may address the subject. However, since other state and federal courts fundamentally follow the same parameters/procedures laid out in the Pennsylvania trial courts, or in some instances have drafted more restrictive discovery orders[2] (see, Trail at *19-*24), it is likely that Pennsylvania's appellate courts will follow suit. Until that time, defense counsel should continue to take careful aim at broadening the scope of Facebook discovery to assist in acquiring as much evidence as possible in order to challenge all aspects of a plaintiff's claim.
[1] McMillen v. Hummingbird Speedway Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, 2010 WL 4403285, No. 113-2010 CD (Jefferson C.P. Sep. 9, 2010) (Foradora, P.J.) (The court directed plaintiff to provide defense counsel with the login and password information on a read-only basis because the plaintiff's public profile indicated relevant information might be contained in the private portion showing that the plaintiff's injuries were exaggerated.); Zimmerman v. Weis Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187, 2011 WL 2065410, No. CV-09-1535 (Northumberland C.P. May 19, 2011) (Saylor, J.) (The court ordered plaintiff to provide defendant with all login and password information without further limitation because based upon relevant and publicly-available information it was reasonable to infer additional relevant information was contained within the private portions.); Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Franklin C.P. Nov. 8, 2011) (Walsh, J.) (After a showing that plaintiff's profile was recently public, was accessed by her the night prior to her deposition and contained posts that contradicted the plaintiff's severe injury claims, the court ordered plaintiff to provide the defendant with her login and password for a period of 21 days, after which plaintiff would be permitted to change her password to preclude any further access to her account by defense counsel.)
[2] See, Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D.Mich. 2012) (Because the publicly available information was not inconsistent with the plaintiff's claims, further discovery was denied as overly broad.); Mackelprang v. Fidelity Nat'l Title Agency of Nevada, Inc., 2007 U.S. Dist. LEXIS 2379, 2007 WL 119149, No. 06-cv-00788 (D.Nev. Jan. 9, 2007) (Defendant's request for email-type communications on a social networking site was denied, because the defendant based its request for production on nothing more than suspicion or speculation as to what information might be contained in the emails); EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010) (Simply because the plaintiff had made content private does not protect it from production when relevant to a claim or defense.); Held v. Ferrellgas, Inc., 2011 U.S. Dist. LEXIS 120980, 2011 WL 3896513 (D.Kan. Aug. 31, 2011) (Slip Op.) (Postings from the period of alleged harassment are relevant, and privacy concerns are mitigated by the fact that the defendant only wants the information, not access to the account.); Loporcaro v. City of New York, 35 Misc. 3d 1209A, 950 N.Y.S.2d 723, 2012 WL 1231021 (N.Y. 2012) (Slip Op.) (The court concluded that the plaintiff had no reasonable expectation of privacy in the content posted on her Facebook profile and ordered the information be provided for the court's review.); Offenback v. L.M. Bowman Inc., 2011 U.S. Dist. LEXIS 66432, 2011 WL 2491371, No. 10-cv-1789 (M.D.Pa. Jun. 22, 2011) (After in camera review in which the court found some of the information relevant and other information not relevant, the court admonished the parties to conduct their own reviews in the future.)
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