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Update on the Discoverability of Facebook Content

Written by James P. Goslee, Esquire

A few weeks ago we posted an article addressing when private Facebook content can be subject to discovery in civil litigation. (see: Litigants Beware — Your Facebook Content May Not Be Private). In that blog post, we noted a trend in Pennsylvania decisions whereby discovery of private Facebook content was only permitted if a litigant’s public profile contained content relevant to the lawsuit. This “threshold” showing of relevant public content seemed to provide some measure of protection against discovery of private Facebook content. However, a recent Common Pleas Court order from Montgomery County seems to call this “threshold” requirement into question.

In Gallagher v. Urbanovich, Nicholas Gallagher sued Matthew Urbanovich, 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 log-in information. The Montgomery County Court of Common Pleas ruled in Gallagher’s favor and ordered Urbanovich to turn over this information. The court 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. In light of this recent order, there is a question as to whether the “threshold” requirement discussed in our former post must be met in order for private Facebook content to be discoverable. This issue will eventually need to be resolved by an appellate court, but until then, litigants should show even more caution in deciding what they post on Facebook.

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