As the social networking market continues to grow and evolve, consumers are increasingly presented with new platforms through which they can document and share their lives. The expansion of this market, particularly over the past few years, has been nothing short of remarkable. Websites like Facebook and LinkedIn have become nearly mandatory for young adults, much like cell phones in the 1990s. Arguably, Facebook has become the preferred method of social communication for a new generation of Americans. And while this new era of social networking has a number of positives, it also carries significant risks — particularly in litigation. Users of social media sites need to be aware that the content that they share (even if they use privacy filters) may be used against them.

Nationally there has been very little case law or rulings governing when Facebook content may become discoverable during litigation. This dearth of precedent is likely to be short lived as lawyers are increasingly requesting access to their adversary’s private networking pages. Pennsylvania is one of the few states on the forefront of Facebook discovery disputes. Although no appellate courts have decided when private Facebook content is discoverable, a number of Pennsylvania trial courts have ruled on the issue and a burgeoning body of precedent is now developing. These decisions are significant and may signal how other states will address the issue.

Like many states, Pennsylvania has liberal discovery rules. So long as information is relevant and not privileged, it is subject to production during the course of litigation. In the past few years, a number of Pennsylvania courts have confronted the question of whether content shared on social networking sites with “private friends” should be considered privileged. In certain circumstances, the answer appears to be NO!
As cases involving social networking discovery wend their way through Pennsylvania’s trial courts, two competing approaches to the discovery of private Facebook content have emerged. As described below, the majority of trial courts have adopted an approach limiting the circumstances in which private content can be discoverable. Under this approach, the party requesting private content is required to make a threshold showing that their adversary’s public Facebook profile includes content relevant to the case. (For purposes of this post, I’ll refer to this as the “threshold rule.”). However, in a recent ruling, the Montgomery County Court of Common Pleas allowed discovery of private content without requiring any threshold showing regarding a litigant’s public profile. These conflicting approaches leave litigants and lawyers in the dark about when private Facebook content may be compelled.

The “Threshold Rule”

A number of recent Pennsylvania cases have started to flesh out the mechanics of the “threshold rule.” For instance, in McMillen v. Hummingbird Speedway, Inc. (PDF), 2010 WL 4403285 (Jefferson Co. September 9, 2010, Foradora, P.J.), a plaintiff sued to recover damages when he was rear-ended during a stock car race. He claimed to have suffered serious injury as a result of the accident. During discovery, the defendant found public postings on his Facebook page which showed that he was not hurt as badly as he claimed. He then requested the plaintiff’s username and password in order to view his private postings. When the plaintiff refused to provide this information, the defendant filed a motion to compel.

Ruling on the motion to compel, the Common Pleas Court rejected the plaintiff’s argument that his private Facebook postings were privileged. Concluding that the plaintiff had no expectation of privacy, the court held “[w]here there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit . . . access to those sites should be freely granted.” The court then ordered the plaintiff to turn over his username and password to the defendant.

A similar result was reached in Zimmerman v. Weise Markets, Inc. In the Zimmerman case, a plaintiff brought suit alleging that he was seriously injured while operating a forklift in the defendant’s warehouse. In his complaint, the plaintiff claimed he injured his leg and, among other things, that due to the scar on his leg, he was too embarrassed to wear shorts. While viewing the public portion of plaintiff’s Facebook page, the defendant discovered pictures of the plaintiff engaging in activities he claimed he could no longer do and wearing shorts. It then filed a motion with the Court of Common Pleas seeking plaintiff’s username and password.

The Zimmerman court held that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites.” In so doing, it specifically warned litigants that “[w]ith the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.” The Court ultimately ordered the plaintiff to turn his username and password over to the defendant.

McMillen and Zimmerman are just two examples of Pennsylvania courts adopting the “threshold rule” in dealing with the discoverability of private Facebook content. See also, Arcq v. Fields, No. 2008-2430 (C.P. Franklin Co. Dec. 7, 2011 Herman, J.); Largent v. Reed, No. 2009-1823 (C.P. Franklin Co. Dec. 7, 2011 Walsh, J.); Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila Dec. 13, 2011 Manfredi, J.). The upshot of these decisions is that if an adversary can make a threshold showing of relevance based on an individual’s public profile, it may open the door for access to private content.

The “threshold rule” makes sense from an evidentiary prespective. Because only relevant evidence is admissible in Pennsylvania, a party seeking private content should arguably have to provide some basis for why this content is material. This is particularly true with respect to Facebook pages, which may contain pictures or information that are extremely embarrassing or confidential. It seems unreasonable and unfair to allow litigants unfettered access to this information if they have no basis for at least establishing why it is relevant. After all, discovery is not supposed to be a fishing expedition. Forcing litigants to show relevant public content as a threshold requirement strikes a fair balance between allowing litigants liberal discovery and protecting them from embarrassment and harassment.

New Development – No Threshold Showing Required

Although some variation of the “threshold rule” has been adopted by the majority of Pennsylvania trial courts that have considered the issue, a recent ruling out of Montgomery County seems to have adopted a much less restrictive approach.

In Gallagher v. Urbanovich, No. 2010 – 33418 (C.P. Mont. Co. Feb. 27, 2012 Carpenter, J.), Nicholas Gallagher sued Matthew Urbanovich in the Montgomery County Court of Common Pleas, claiming that Urbanovich intentionally struck him in the face during an intramural soccer game. Gallagher filed a Motion to Compel seeking Urbanovich’s Facebook password and login information. Judge William Carpenter ruled in Gallagher’s favor and ordered Urbanovich to turn over this information. He issued this order despite the fact that Gallagher’s Motion to Compel did not reference any content on Urbanovich’s public Facebook profile relevant to the case.

Although Judge Carpenter’s ruling was not supported by an opinion, he seemed to have reached a conclusion at odds with the majority of other Pennsylvania courts. In light of this ruling, there is a serious question about the ongoing applicability of the “threshold rule.” If Judge Carpenter’s decision is followed, it may be open season for the discoverability of private Facebook content.

Ultimately, the discoverability of private social networking content needs to be resolved by an appellate court. Until that happens, however, litigants (or potential litigants) need to exercise extreme caution in choosing what they post on social networking sites. This is especially true with respect to what they include in their public profile.

– James P. Goslee


James P. Goslee is an associate with the law firm of Cohen, Placitella & Roth, PC and focuses his practice on personal injury, medical malpractice, subrogation, commercial litigation and securities law. Cohen, Placitella & Roth is a litigation law firm with offices located in Philadelphia, Pennsylvania and Red Bank, New Jersey. The firm is nationally recognized and the attorneys concentrate their practice on representing injured parties in a wide array of complex litigation matters such as product liability, personal injury/wrongful death, defective products, environmental, subrogation, securities fraud, unfair and deceptive business acts. To learn more about Cohen, Placitella and Roth, P.C., and their attorneys, please visit http://www.cprlaw.com.

7 Responses to Litigants Need to Exercise Extreme Caution When Posting to Social Networking Sites

  1. Tom says:

    Here is a very important update. According to Judge Wettick (who is a really big deal in Pennsylvania), it is not very intrusive to have to turn over most private Facebook content.

    http://www.cprlaw.com/links/blogs/judge-wettick-weighs-in-on-the-discoverability-of-private-facebook-content.html

  2. Andrew Farrell says:

    I wonder how courts will rule on the discoverability of content from profiles that have been deactivated. It seems that if the private content in Facebook profiles, in some jurisdictions, requires a threshold showing of relevance, then profiles that can no longer be seen by others on the Internet would be further protected. An individual must be entitled to an increased expectation of privacy once it can be shown they made a conscious effort to conceal information from the public. Still, Facebook stores information from deactivated profiles, which means that the information is always capable of being accessed. As jurisprudence on this topic grows, some individuals will undoubtedly deactivate their profiles in an effort to pre-empt intrusions on their privacy. However, such action never truly disposes of their embarrassing and, at times, incriminating posts and pictures.

    • Cal Albritton says:

      It’s funny that you mention incriminating posts and pictures. If someone else takes pictures of you on their FB, you can detag yourself, but I guess you might not be able to force them to take them down. Those could I guess be discoverable.

      Also, I think you can ask FB to permanently delete your profile, but I heard it’s a huge pain and they’re extremely reticent to do it

  3. KM says:

    It seems like the old piece of advice “Never put anything in writing that you wouldn’t want to see on the front page of the newspaper,” has not translated for many people on Facebook who choose to post pictures, comments and status updates to hundreds of friends regarding intimate details of their daily lives. I agree with the post and Erin’s comment that the threshold showing seems like a good start—but for the many users who follow the “too much information” approach to Facebook, does it really offer much protection? Not that I think that’s a bad thing—I think way too many people post way too much personal information on Facebook and perhaps as the risk of discovery becomes more well known, it will serve a behavior channeling function.

  4. Marina Visan says:

    This is an incredibly interesting issue, especially considering how the law (and technology) is momentarily in such flux. I think Katie’s note on “The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs” (http://www.jetlaw.org/?page_id=10929) also does a fantastic job pointing out some of the issues with using Facebook photographs as evidence during litigation.

    It’s incredibly important for the general population to educate themselves on the consequences of posting information online. I’m sure that this point has been belabored, but I think that the general population does not fully appreciate the risks involved with posting pictures and personal data on the internet. Even private profiles are not necessarily protected.

    Furthermore, on a related note, employers have now started asking potential employees for their Facebook usernames and passwords. While employees can claim that this is an invasion of privacy, it seems like employers in this case could argue that they merely asked, not compeled, their potential employees to reveal that information. Another course of action for employees would be to potentially bring claims of discrimination against their potential employers. Unfortunately, I don’t think that it would be too difficult for employers to give many other reasons as to why they chose not to hire the employees who refused to reveal their passwords, especially in this job market, with many more applicants than available positions.

  5. Adam Lestin says:

    Very interesting and very disturbing

  6. Erin Reimer says:

    What a great analysis. I’m particularly interested to see what limits arise on allowing discovery of social media accounts. While I think that the threshold showing that most Pennsylvania courts seemingly require seems like a good start, criticisms of how expansive (and expensive) discovery proceedings have become seem to suggest to me that there should be even further limitations. At present, Facebook is still a fairly recent concept, so it only has a few years of personal history stored. As we get older, the amount of information on each personal account will grown exponentially, particularly with the addition of new apps and product features (the new “timeline” profile, for example). I have to imagine that limitations on the amount of accessible information (by either subject matter or relevant time periods) will need to be developed.