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Social Media Ushers in a
New Era of Discovery

Christina M. Adinoli-Shea
By Christina M Adinolina-Shea, Esq.
Capehart and Scatchard

As the world continues to become more technologically advanced, it should come as no surprise that this trend is affecting many areas of law. Attorneys and clients are beginning to see the interplay between social networking sites, such as Facebook, and the law.

Social platforms are re-defining the definition of “privacy.” On Facebook, the information posted on user’s profile pages may be shared with the general public. There are certain privacy settings that control how much information is shared and with whom it is shared. When it comes to discovery in litigation, the question is, at what point is privacy lost? The answer to this question is important for municipalities which defend a variety of lawsuits for personal injury, workers’ compensation and employment practices.

graphic showing social media websites

Three recent Pennsylvania cases 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., No. 113-2010, 2010 Pa. Dist. & Cnty. Dec. Lexis 270 (Pa. C.P. Jefferson September 9, 2010) the plaintiff filed a lawsuit against the defendant to recover damages for injuries sustained during the last lap of a July 7, 2007 stock car race. During discovery, the defendant served interrogatories on the plaintiff, which included a question as to whether the plaintiff belonged to a social networking site. If he did, he was asked to provide his user names, log-in names and passwords. The plaintiff confirmed that he belonged to Facebook and MySpace; but refused to turn over his user names, log-in names or passwords. He claimed that such information was privileged. The defendant looked at the public portion of the plaintiff’s Facebook page and discovered comments about the plaintiff attending a fishing trip and the Daytona 500 in Florida.

The defendant subsequently filed a Motion to Compel Discovery that asked 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 contradict his claim for damages. The Court granted the Motion and noted that “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.” McMillen, 2010 Pa. Dist. & Cnty. Dec. Lexis 270, at *11.
Riding on the coat-tails of McMillen is Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 Pa. Dist. & Cnty. Dec. Lexis 187 (Pa. C.P. Northumberland 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 at the public portion of the plaintiff’s Facebook and MySpace pages, which identified interests including bike-riding and performing bike stunts and displayed photographs of the plaintiff with a black eye standing with his motor cycle after a motorcycle accident. Perhaps the most detrimental photographs were those showing the plaintiff wearing shorts, despite testimony he never wore shorts following the accident because he was embarrassed to show the scar that remained on his leg as a result of the forklift accident. 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.” Zimmerman, 2011 Pa. Dist. & Cnty. Dec. Lexis 187, at *10.

McMillen and Zimmerman cleared the path for the most recent, and perhaps most lengthy, decision in the case Largent v. Reed, No. 2009-1823 (Pa. C.P. Franklin November 8, 2011). While factually similar to both McMillen and Zimmerman, Largent set forth a more expansive basis for ruling 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 used 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 her enjoying life with her family, which was contradictory to her claim for damages. The Court analyzed whether both 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 non-existent or exaggerated. However, the most interesting aspect of the Court’s decision was in addressing whether the privacy requirement was met.

In addition to examining whether the requirement was met under Pennsylvania law, the Court analyzed whether it was met under federal law, namely The Stored Communications Act. As part of the Electronic Communications Privacy Act, The Stored Communications Act (SCA), 18 U.S.C. §§ 2701-2712, 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 that only one case thus far addressed whether Facebook is covered by the SCA, Crispin v. Christian Audigier, Inc., 717 F.Supp. 2d 965 (C.D. Cal. 2010). In that case, a subpoena was served directly on Facebook to obtain information about the plaintiff’s status postings. The Crispin Court held that Facebook was covered by the Act and concluded subpoenas are never allowed under the SCA. The Largent Court distinguished the facts of Crispin, 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. 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 precedent that will likely influence the litigation and workers’ compensation arenas in other states. Municipal attorneys are wise to use this resource to their advantage. On December 23, 2011, Facebook launched “Facebook Timeline,” which enables users to create an online autobiography. Users can post pictures, captions and the like, which are broken down by year and even by month. From a legal standpoint, this adaptation to Facebook will provide even more fruitful opportunities for discovery in civil litigation and workers’ compensation.

Christina M. Adinolfi Shea, Esq. is an attorney at Capehart and Scatchard, which represents many public sector employers throughout New Jersey

 

 

Originally published in New Jersey Municipalities, Volume 89, Number 4, April 2012

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