Litigants Beware — Your Facebook Content May Not Be Private

By: chris.placitella @ Mar 30, 2012

Written by James P. Goslee, Esquire

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.

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!

For instance, in McMillen v. Hummingbird Speedway, Inc., 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. It 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 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 claiming 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.

These are just two examples of recent decisions dealing with the discoverability of private Facebook content. The trend in these decisions is that private information shared on Facebook or other social sites is discoverable if an adversary can make a threshold showing of relevance based on an individual’s public profile. In other words, if a litigant’s public profile contains content relevant to their claims, it may open the door for an adversary to gain access to private content.

In light of these judicial trends, litigants (or potential litigants) need to exercise extreme caution in choosing what they post on social networking cites. This is especially true with respect to what they include in their public profile. If litigants share information in their public profile that is relevant to their claims, their private information may become “fair game.”