Civil litigators, tell me you’ve never heard this before:
“You should be careful about what you post on Facebook. We wouldn’t want the defendants getting hold of damaging information.”
“Oh, don’t worry, I set my profile to private.”
Well guess what? Just because a Facebook profile is set to private doesn’t necessarily mean it can’t be accessed if you’re involved in a lawsuit. In fact, your entire Facebook account could be subject to letting an attorney access it, including your private messages, chat logs, wall, status updates, and stupid FrontierVille account. This is because current case law in Pennsylvania suggests that one party may be given carte blanche access to another party’s social media accounts if there is a reason to think it could yield information relevant to a lawsuit.
Let’s start with Largent v. Reed, a case out of Franklin County. This case involved a vehicle accident where a plaintiff was suing for personal injuries. The issue before the court was this:
Defendant Jessica Rosko has filed a Motion to Compel Plaintiff Jennifer Largent’s Facebook Login Information. Rosko has a good faith belief that information on Jessica Largent’s Facebook profile is relevant to Rosko’s defense in this matter.
Defense counsel discovered that she has a Facebook profile, that she had used it regularly to play a game called FrontierVille, and that she last accessed it the night before the deposition.
In other words, the defendant wanted the plaintiff’s Facebook login information.
Yes, you read that correctly: the defendant wanted access to the plaintiff’s entire Facebook profile and even a FrontierVille account. See? I wasn’t kidding about the FrontierVille thing.
But how is that fair?
The defendant believed the plaintiff “had posted several photographs that show her enjoying life with her family and a status update about going to the gym.” The plaintiff wasn’t happy about this, and argued, among other things, that her privacy would be violated if forced to turn over access to her entire Facebook account. However, the court sided with defendant, holding that:
Photographs posted on Facebook are not private, and Facebook postings are not the same as personal mail. Largent points to nothing specific that leads the Court to believe that discovery would cause unreasonable embarrassment. Bald assertions of embarrassment are insufficient. As the court stated in McMillan, Facebook posts are not truly private and there is little harm in disclosing that information in discovery. Nor does the Court believe that allowing Rosko access to Largent’s Facebook profile will cause unreasonable annoyance.
We will thus allow Rosko access to Largent’s Facebook account to look for the necessary information. Plaintiff Jessica Largent must turn over her Facebook login information to Defense counsel within 14 days of the date of the attached Order.
In other words, we’re sorry you don’t like it, but that’s the law of tough noogies. Turn over your Facebook login information, because we’re going to let defense counsel have a look at it.
However, the Largent court noted that a party’s social media accounts might not be available in every instance:
The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.
Next, let’s take a look at McMillen v Hummingbird Speedway, Inc., which comes out of Jefferson County. In McMillen, we have another vehicle accident case. Plaintiff McMillen alleged his injuries were permanent and that he had lost life’s pleasures. However, after defense counsel looked at a public portion of McMillen’s Facebook profile, they learned that he made comments about a fishing trip and may have gone to the Daytona 500 in Florida. The defendants demanded he turn over production of his user names, login names, and passwords to any social media sites. The plaintiff obviously argued that his comments on Facebook among close friends were private. The court rejected this argument, stating:
Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.
Both sites at issue here do guarantee a modicum of privacy insofar as users may, with the exception of certain basic information, choose what information and posts to make public and which ones to share with only those persons they have identified as friends.
Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post.
Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given Koken’s admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” 911 A.2d at 1027, and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.
The plaintiff was then given 15 days to turn over the login and password to his MySpace and Facebook accounts for the defendants to inspect.
Zimmerman v. Weis Markets also produced a similar result. In Zimmerman, the plaintiff was operating a forklift in Weis Markets. He injured his left leg and claimed diminished earning capacity, embarrassment from a scar, and that he sustained a permanent injury. The defendant viewed the public portion of Mr. Zimmerman’s profile, and found this his hobbies included “ridin'” and “bike stunts” and that his MySpace account showed pictures of him with a black eye and his motorcycle before and after the accident. The pictures also showed Mr. Zimmerman wearing shorts with his scar clearly visible. However, Mr. Zimmerman had testified in his deposition that he no longer wore shorts because he was embarrassed about the scar. The court, relying on McMillen, held that the plaintiff had to turn over the login information to his Facebook and MySpace page:
Zimmerman placed his physical condition in issue, and Weis Markets is entitled to discovery thereon. Based on a review of the publicly accessible portions of his Facebook and MySpace accounts, there is a reasonable likelihood of additional relevant and material information on the non-public portions of these sites. Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites to share with other users of these social network sites, and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weis Markets from access to such information. By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge.
Now, there are also cases out there where defendants were not allowed to obtain a plaintiff’s social media login information, but in my view, those cases are in the minority and different from the above cases.
For example, in Arcq v. Fields, the court denied defense counsel’s requests to access a plaintiff’s social networking sites. Interestingly, the court in Arcq did not reject the logic of McMillen, Zimmerman or Largent, but rather, it stated that the defense did not have a reason to suspect the plaintiff’s social media accounts contained relevant information. The Arcq Court’s reasoning was this:
In analyzing the reasoning in the cases discussed above, it has become apparent that the courts granted the Motions to Compel because the party seeking information had a basis for their request. The parties had viewed the public portion of opposing parties’ social networking profiles which contained relevant information and therefore had reason to believe the private portion might contain some as well. Their requests were reasonably calculated to yield information that would lead to admissible evidence.
In other words, the court seemed to suggest that the defendant needs to show something more than “The plaintiff has a Facebook page and there might be stuff on it.” The Arcq Court suggested that a party must first use some portion of a public profile as a gateway to gaining access to private information. Critically, the Arcq Court did not reject McMillen, Zimmerman, or Largent, but instead differentiated the facts.
Next, in Piccolo v. Paterson, a Bucks County Court of Common Pleas denied defense counsel’s request to access plaintiff’s Facebook page without opinion. Since the opinion is so short, I have to rely on other sources. According to The Legal Intelligencer, the court rejected defendant’s arguments, noting that defendant had already been provided an accurate photographic representation of the relevant evidence. As the Legal Intelligencer notes:
Piccolo [the plaintiff] allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.
This might come closer to setting contrary precedent, but there is no written opinion.
Kalinowski v. Kirschenheiter was slightly more sympathetic to plaintiffs. However, I can’t find a written opinion, so I must rely on other sources. According to Philip Miles at Lawffice Space and The Legal Intelligencer:
In Kalinowski v. Kirschenheiter and National Indemn. Co. (Luzerne Cty.), the defendant argued that he saw pictures and posts on the publicly accessible portions of the plaintiff’s social media accounts that warranted further discovery. The posts showed the supposedly injured plaintiff lounging on a bar stool in a pimp outfit, advertised a lingerie party at a bar the plaintiff owned, and promoted a going away party for him that promised to be “a night he WON’T REMEMBER!!”
The plaintiff argued that the pimp picture was pre-injury and the content cited by the defendant served no purpose other than to embarrass the plaintiff. The plaintiff also emphasized that none of the content directly impeached any of his testimony.
The judge denied the motion to compel production of the plaintiff’s Facebook and MySpace passwords. But, the order also directs the plaintiff not to delete any of the present content. So, the door remains open to future social media discovery.
From what I’m reading, it doesn’t look like the court rejected Largent, McMcMillen, or Zimmerman. Rather, the court seems to be following the Arcq Court’s rationale: find a little bit more and we’ll consider it. That is probably why the court made the plaintiff preserve the information on his social media accounts.
Finally, we have a decision right here in Philadelphia – Martin v. Allstate Fire and Casualty Insurance Co., where Allstate’s motion to compel access to a Facebook page was denied. According to Law.com, this matter involved defense counsel seeking to obtain plaintiff’s Facebook login information. As summarized on Feldman Shepard‘s blog:
In Martin v. Allstate Fire and Casualty Insurance Co., the plaintiff (Patricia Martin) was struck by a car while she was walking. She was awarded $15,000, and subsequently attempted to collect underinsured motorist coverage from Allstate. After she filed suit, the insurer asked for her Facebook password in an attempt to obtain any information about the accident that she may have posted as part of their discovery. Ben Present writes, “Allstate argued that ‘any harm in disclosing information exposed to friends’ was outweighed by the benefit of ‘honestly and correctly’ resolving the issue of damages Martin raised.
The Philadelphia Court of Common Pleas denied the Motion to Compel without opinion. However, that isn’t out of the ordinary in Philadelphia discovery court, where motions are usually decided on the spot at oral argument.
Notably, the above cases all refer to personal injury matters. An analysis of whether a Facebook profile is relevant under the discovery rules could differ in a custody or divorce matter.
Where does that leave us? With several written opinions suggesting that defendants can obtain carte blanche access to Facebook accounts if they can show it might have relevant information, one decision saying a defendant needs a basis to access a Facebook account, and a couple of judges who denied motions to compel seeking access to social media accounts but didn’t write opinions expressing their rationale. The Arcq Court (and the Largent Court) seemed to suggest the test is that a party must first find something relevant in a public profile before delving into the private portions, which isn’t exactly a high bar…
In my view, the case law seems to suggest that accessing a party’s social networking accounts is fair game if there is a basis to believe it could lead to relevant information. I’ve yet to see any authority expressly rejecting Largent, McMillen, or Zimmerman.
Put simply, “Your Honor, we found something in the plaintiff’s public profile that suggests there might be relevant information in the private section, and we would like to investigate it further” seems to fly. However, “Your Honor, they have a Facebook profile, but it’s private and we want to see it” doesn’t seem to fly.
So what does it all mean? Well, I don’t know… it could mean a lot of things. New York personal injury lawyer and blogger Eric Turkewitz raises this issue:
There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.
Notably, the court in Zimmerman addressed Eric’s important concerns by, well, blowing them off:
In the alternative, Zimmerman also argued that the Court should conduct an in-camera review and decide
what materials should be provided to Weis Markets. This argument is flatly rejected as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.
In addition to Eric’s concerns, I believe these decisions also raise another issue:
For instance, what if a client were to reach out to a lawyer on Facebook via a private message? Would that be construed as a waiver of privilege? Does this mean that lawyers should not have Facebook pages or friend anyone who is a potential client? I’m sure many lawyers out there have received a private message from someone asking for legal advice. Particularly in my generation, many people view private messages as emails. Are they discoverable?
The Zimmerman Court addressed this concern, by, well, blowing it off:
Thus, while it is conceivable that a person could use [social networking] as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.
I think it’s worth noting that mediums of communication change from generation to generation. My grandparents wrote each other letters. My parents spoke with each other on the telephone. My wife and I communicate via Facebook and GChat, and I suspect the same is true for many young people. However, the courts don’t seem to appreciate that social media has replaced the telephone and letters for a younger generation.
But the younger generation isn’t running the court system.
Hopefully our appellate courts will provide some guidance, and these other issues will be addressed.
In any case, one thing is clear right now – just because a Facebook profile is set to “private” doesn’t mean it can’t be accessed. It also appears that attorneys are increasingly requesting full access to a litigant’s entire Facebook profile – not just one’s Wall or photos.
And the courts are letting them have it.