Social media has become an important discovery tool in a world saturated with technology. In the context of personal injury litigation, where Plaintiffs often claim permanent, life-altering injury, access to social media websites can often shed some light on the extent of those claims without the necessity of hiring a private investigation service.
Though the issue of discovery of social media is relatively new, an emerging legal trend has begun to view these sites as public domain. Most recently, the Pennsylvania Commonwealth Court has definitively ruled that there is no expectation of privacy when it comes to social media websites such as Facebook and Twitter. The following cases from the Commonwealth are instructive as to how Courts view social media websites and the procedure for requesting such information from the site user in New Jersey.
Largent v. Reed, 2011 WL 5632688 (2011)
This case arose out of a chain-reaction auto accident that occurred four years ago. Plaintiff Keith Largent was the driver with Plaintiff Jessica Largent as a passenger. The Complaint alleged serious and permanent physical and mental injuries, pain, and suffering. During Plaintiff Jessica Largent’s deposition, Plaintiff stated that she had a Facebook profile and used it often to play “Frontierville.” However, she refused to disclose any information about the account advising that she would not turn over the information voluntarily. Defendant was forced to file a Motion to Compel the Login Information of Plaintiff Jessica Largent.
In authorizing disclosure of Plaintiff’s Facebook profile, the Court reasoned that the information is not “privileged” as there is no confidential social networking privilege under existing Pennsylvania law. The Court reasoned that when a user communicates on Facebook, the posts may be shared with strangers, and making a Facebook page “private” does not shield it from discovery. EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).
The Court rebuffed any suggestion that the Stored Communications Act, a part of the Electronic Communications Privacy Act, Pub. L. No. 99-508, 100 Stat. 1848 (1986), prohibited disclosure of Facebook information. The intent behind the Act was to limit the government’s ability to compel Internet Service Providers (ISPs) from providing information about their customers and subscribers. The only case interpreting whether the SCA applied to Facebook was Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). In that case, the party served a subpoena on Facebook and other social networking sites seeking Plaintiff’s online postings. The Court ultimately quashed the subpoena, holding civil subpoenas were never permissible under the SCA. However, the Court in this case found Crispin inapplicable as Defendants were seeking the Facebook information directly from the Plaintiff herself. Therefore, the spirit and intent of the SCA was found not to apply.
The Court also addressed Plaintiff’s argument that production would be unduly burdensome and embarrassing. Plaintiff analogized the release of her Facebook information as akin to releasing her private photo albums and mail. The Court stated that in a lawsuit seeking monetary damages where Plaintiff has put her health at issue, any Facebook posts that concern Plaintiff’s health, mental or physical, are discoverable and any privilege concerning such information is waived. The Court emphasized that Facebook is nothing like private mail or photo albums because Facebook posts are
“not truly private and there is little harm in disclosing that information in discovery.” Id. at fn.13.
As for the undue burden, the Court stated that the investigation of Plaintiff’s Facebook profile will not cause unreasonable annoyance. The Court notes the entire cost of the investigation will be borne by Defendant and Plaintiff can still access her account while the investigation is pending. Thus, to the contrary, the process is probably one of the least burdensome ways to conduct discovery.
Ultimately, the Court required Plaintiff to turn over her Facebook login information and gave Defense counsel a 21-day window in which to inspect Plaintiff’s profile.
Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (2011)
Similarly, in Zimmerman, Defendant Weis Markets filed a Motion to Compel Disclosure and Preservation of Plaintiff’s Facebook and MySpace information. Plaintiff was operating a forklift at Defendant’s warehouse when he injured his left leg. His Complaint made allegations of serious and permanent injury as well as diminution in the ability to enjoy life’s pleasures, and disfigurement.
However, Defendant, upon review of the public portion of Plaintiff’s Facebook page, discovered Plaintiff’s interests included “riding” and “bike stunts.” His MySpace page showed recent pictures of Plaintiff with a black eye and his motorcycle before and after another accident dated before the one at issue in the litigation. The pictures also showed Plaintiff wearing shorts with his scar from the accident clearly visible. This contradicted Plaintiff’s statement at deposition that he never wears shorts because he was embarrassed of his scar. Plaintiff, as in Largent, argued privacy concerns.
The Court agreed with the holding in McMillen, authorizing access because no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal. The Court cited a New York case, Roman v. Steelcase, Inc., 907 N.Y.S. 2d 650, 655 (Suffolk Co. 2010), for the principle that “to allow a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”
In addressing Plaintiff’s Fourth Amendment argument, the Court stated that Plaintiff cannot have a reasonable expectation of privacy as the right to privacy “protects people, not places.” See Romano citing Katz v. United States, 389 U.S. 347 (1967). Further, the Court found Plaintiff has no reasonable expectation of privacy because Plaintiff put his physical condition in issue. Thus, Defendants were entitled to discovery regarding Plaintiff’s physical condition.
McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (2010)
In McMillen, Plaintiff was rear-ended by Defendant on the “cool down” lap of a stock car race. He stated as a result he sustained substantial injuries including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures in life. Defendant asked for Plaintiff’s social networking information during discovery and was denied by Plaintiff citing privacy concerns. Defendant filed a Motion to Compel the production of Plaintiff’s user names, logins, and passwords to all social networking sites.
The Court ruled that in order for a new privilege to be recognized, a claimant must establish that (1) his communications originated in the confidence that they would not be disclosed; (2) that the element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties; (3) community agreement that the relationship must be sedulously fostered; and (4) that the injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation. Matter of Adoption of Embick, 506 A.2d 455,461 (Pa. Super. 1986) citing 8 J. Wigmore, Evidence, 2285 (McNaughton’s rev. Ed. 1961).
What These Cases Mean for Defense of Personal Injury Claims
A review of these cases seem to indicate overwhelmingly that social media websites are public domain. No user should expect that their posts are private, even if the highest privacy setting has been achieved. It is clear that Courts perceive mere membership erases any notion of privacy. By consenting to the user terms of Facebook, a party acquiesces to the fact that any information posted is readily ascertainable by the public (vis a vis other friends’ posts, etc). Therefore, as a matter of diligent defense work, especially with younger Plaintiffs, all social media websites must be checked to flesh out the substance of Plaintiff’s injury claims. These rulings speak volumes for the use of Facebook, Twitter, and even YouTube videos. In the case of YouTube videos, the argument in favor of disclosure is even stronger as there are no privacy settings for YouTube users. YouTube users post videos knowing the public has unfettered access to these posts.
Further, it seems that the threshold for relevancy is easily met. The Courts seem to reiterate that when a user is involved in a civil suit that puts his/her health in issue, any information on social media websites pertaining to health is relevant to the alleged injury sustained. It is interesting to note that none of the aforementioned cases limited the scope of access to Plaintiff’s social media websites. Thus, in the context of personal injury litigation where the Plaintiff’s condition is always in issue, the social media content will be relevant and discoverable.
Lastly, there can be no doubt that the Courts do not regard the discovery of such information as unduly burdensome, embarrassing, or injurious to any user. The information can be easily ascertained with minimal burden to any user as the cost is borne by the Defendant and the user still has access to the account during the period of discovery. Further, it seems incredulous that a user can argue embarrassment when they freely chose to post certain items knowing they would be accessible to the public at large. Lastly, any injury, however remote, is largely overcome by the benefit the Defendant receives from a fair trial vis a vis discovery of all relevant and pertinent information. For as the Court stated in Zimmerman, quoting Romano, a Plaintiff claiming substantial injury should not be permitted to hide behind self-set privacy controls.
As the creator of Facebook, Mark Zuckerberg stated, “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people – and that social norm is just something that has evolved over time.” That social norm has given Defendants an even greater ability to expose any embellished claims and engage in greater protection of their clients.