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Facebook – Ushering In a New Era Of Discovery?

As the world in which we live continues to become more technologically advanced, it should come as no surprise that this advancement is having effects on many areas of the law. Attorneys and clients are beginning to see the interplay between social networking sites, such as Facebook, and the law, as these social platforms are ultimately re-defining the definition of “privacy.” Users of Facebook are aware that the information posted on their profile page may be shared with the general public. Hence, there are certain privacy settings to control just how much information is shared and with whom it is shared. For discovery, the question becomes – at what point is privacy lost? Truly, social networking sites amount to a treasure trove for discovery in litigation.

Three recent Pennsylvania cases have set a new standard in defining circumstances where an individual loses his or her right to keep information on a Facebook (and MySpace) page private. In the first case, McMillen v. Hummingbird Speedway, Inc. (2010 Pa Dist. & Cnty. – September 9, 2010), decided on September 9, 2010, the plaintiff filed a lawsuit against the defendant to recover damages for injuries he sustained during the last lap of a July 7, 2007 stock car race. During discovery, the defendant propounded interrogatories on the plaintiff, which included a question as to whether the plaintiff belonged to a social networking site and, if he did, he was asked to provide his user names, log-in names and passwords. The plaintiff confirmed he belonged to Facebook and MySpace but refused to turn over his user names, log-in names and/or passwords claiming such information was privileged. The defendant looked to the public portion of the plaintiff’s Facebook page, which showed comments about the plaintiff attending a fishing trip and the Daytona 500 in Florida.

The defendant subsequently filed a Motion to Compel Discovery asking the court to require the plaintiff to produce his user names, login-in names and passwords for both Facebook and MySpace, based upon the fact that the activities described on the public portion of the plaintiff’s Facebook page appeared to conflict with the plaintiff’s claim for damages. The court granted the defendant’s Motion, noting “McMillen has alleged significant and substantial injuries, some of which he claims may be permanent. Accepting only the public portion of his Facebook page, however, the defendants have discovered posts they contend show that McMillen has exaggerated his injuries. Certainly a lack of injury and inability is relevant to their defense, and it is reasonable to assume that McMillen may have made additional observations about his travels and activities in private posts not currently available to the defendants. If they do exist, gaining access to them could help prove either the truth or the falsity of McMillen’s alleged claims.”

Riding on the coat-tails of McMillen is Zimmerman v. Weis Markets, Inc. (2011 Pa. Dist. & Cnty. – May 19, 2011), decided on May 19, 2011. In Zimmerman, the plaintiff filed a lawsuit against the defendant to recover damages for injuries sustained to his left leg in a forklift accident. As in McMillen, the defendant looked to the public portion of the plaintiff’s Facebook and MySpace pages, which identified interests including bike-riding and performing bike stunts and also displayed photographs of the plaintiff with a black eye standing with his motorcycle before and after a motorcycle accident. Perhaps the most detrimental photographs were photographs of the plaintiff wearing shorts, despite his testimony that he never wore shorts following the forklift accident because he was embarrassed to show the scar that remained on his left leg. In granting the defendant’s Motion to Compel, the court stated, “Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites…and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weiss Markets from access to such information…With 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.”

McMillen and Zimmerman cleared the path for the most recent, and perhaps most lengthy, decision in the case of Largent v. Reed (Court of Common Pleas of the 39th Judicial District of PA – Franklin County – November 8, 2011, decided on November 8, 2011.) While factually similar to both McMillen and Zimmerman, the Largent case set forth a more expansive and detailed basis for ultimately holding that the plaintiff’s Facebook and MySpace user names, log-in names and passwords were discoverable. The plaintiff brought suit following an auto accident and alleged serious physical and mental injuries. During her deposition, the plaintiff testified she suffered from depression, spasms in her legs and had to use a cane when walking. In support of its Motion to Compel the plaintiff to provide her Facebook and MySpace information, the defendant argued the public portion of the plaintiff’s Facebook page included status updates about going to the gym and displayed photographs of the plaintiff enjoying life with her family, which clearly was contradictory to her claim for damages. The court analyzed whether both the requirements of relevancy and privacy were met. It found the relevancy requirement was clearly met since the information sought by the defendant might prove the plaintiff’s injuries were either non-existent or exaggerated.

The most interesting aspect of the court’s decision was in addressing whether the privacy requirement was also met. In addition to examining whether the requirement was met under Pennsylvania law, the court analyzed whether the requirement was met under federal law, namely The Stored Communications Act. As part of the Electronic Communications Privacy Act, The Stored Communications Act (SCA) limits the government’s ability to force Internet Service Providers (ISPs) to reveal information about their users and limits the right of ISPs to voluntarily reveal information about their users. The court noted only one case thus far has addressed whether Facebook is covered by the SCA, Crispin v. Christian Audigier, Inc. In that case, a subpoena was served directly on Facebook to obtain information about the plaintiff’s status postings. The Crispin Court held Facebook was covered by the Act and concluded subpoenas are never allowed under the SCA. The Largent Court distinguished the facts of the Crispin case, noting the defendant was seeking information directly from the plaintiff, not from Facebook. As an individual, the plaintiff was not an entity regulated by the SCA. Finding the privacy requirement was satisfied, the court ordered the plaintiff to turn over her user names, log-in names and passwords for Facebook and MySpace.

While the discoverability of Facebook information has not yet been addressed by New Jersey Courts, the holdings in these three Pennsylvania cases have set a tone that will likely carry over to the litigation and workers’ compensation arenas in many states. Future generations are Facebook devotees, and attorneys are wise to use this resource to their advantage. Set to launch December 23, 2011 is “Facebook Timeline,” which will essentially enable users to create an online autobiography going back to the year of their birth through the present. Users will be able to post pictures, captions and the like, which will be broken down by year and even by month. Critics argue this is yet another change Facebook is making to their interface and will remain one that some users will not like. Nonetheless, from a legal standpoint, this adaptation to Facebook will provide even more fruitful opportunities for discovery in civil litigation and workers’ compensation.

This article was written by Christina M. Adinolfi Shea, Esq., who works with John H. Geaney, Esq., in the Capehart & Scatchard workers’ compensation department.

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