Abbey Spanier LLP: Social Media Accounts Are Fair Game in Discovery

A recent Pennsylvania State Court order granting a defendant’s motion to compel the production of one of the plaintiff’s Facebook log-in credentials found that social media accounts–even if set to private–are fair game in discovery.

In Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011), a personal injury case, the plaintiffs alleged serious and permanent physical and mental injuries, pain and suffering resulting from a motorcycle-automobile accident.

During the deposition of one of the plaintiff’s, Jennifer Largent, the defendant learned that Ms. Largent had a Facebook profile and that she used it regularly. However, she declined to disclose any information about the account and plaintiffs’ counsel advised that it would not voluntarily turn over such information.

Months prior, Ms. Largent’s profile was public, meaning that anyone with an account could read or view her profile, posts and photographs, but she changed her privacy settings to private.

In support of its motion to compel, the defendant claimed that some of Ms. Largent’s posts that had been publicly accessible contradict plaintiffs’ claims and, specifically, that Ms. Largent posted several photographs that show her enjoying life with her family and a status update about going to the gym.

Plaintiff argued that the discovery sought by the defendant was irrelevant, that disclosure of her Facebook account access information would cause unreasonable embarrassment and annoyance, and that such disclosure may violate certain privacy laws.

The Court was not persuaded. As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.

After reviewing a small but growing body of relevant case law, the Court found that “it is clear that material on social networking sites is discoverable in a civil case.” Information posted to the social media site is shared with third parties and, thus, there is no reasonable expectation of privacy in such information. The plaintiffs failed to cite any privacy law applicable to individuals that would shield production. And that, because defendant would bear the cost of investigating plaintiff’s Facebook profile, “this is one of the least burdensome ways to conduct discovery.”

The ruling is well-reasoned and consistent with existing case law, suggesting that this issue is likely to be widely resolved in favor of disclosure.

As such, we believe plaintiffs’ counsel should make discussing their clients’ social media accounts a routine part of their intake procedures depending on their practice areas and that litigants should be aware that setting a Facebook page to “private” does not necessarily mean it will be out of bounds in Court.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.

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