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Labor and Employment Law

Access to a Party’s Facebook Account During Discovery

As tempting as it may be to believe, judges don't always get it right. Every lawyer has seen an opinion that misapplies the law or applies the wrong law altogether. And maybe that's why we get so giddy when a court really nails it, particularly when the issue is complicated or novel or the law unsettled. Allegheny Court of Common Pleas Judge hit one of these legal homeruns in a 20-plus-page decision issued last week in Trail v. Lesko. The unsettled legal issue that Judge R. Stanton Wettick addressed was the discoverability of social-media content. 

The case arose from a motor-vehicle accident, from which the plaintiff alleged to have been seriously injured. The parties both sought to have the other side produce Facebook posts and pictures.  Neither side complied and both parties filed motions seeking to compel their opponent to turn over his Facebook password and username.

Put differently, "Ask me to show you mine and I'll ask you to show me yours."

Plaintiff's Requests for Access to Defendant's Facebook Account

The defendant denied driving the vehicle at the time of the accident and alleged that he did not remember who had been driving the vehicle at the time.  The  plaintiff sought access to the defendant's Facebook account, arguing that it could be "relevant in determining defendant's whereabouts or in uncovering any potential witnesses who could shed lights on the events in question." 

After making the plaintiff's request, though, the defendant admitted in his written discovery responses that he was the driver at the time of the accident. The defendant also admitted that he had been intoxicated while driving. Thus, the court found that any information that might be available on Facebook was rendered "seemingly irrelevant."  Moreover, the court explained, the defendant's own admission about driving under the influence of alcohol would render any of the Facebook information irrelevant to a claim for punitive damages.

Defendant's Requests for Access to Plaintiff's Facebook Account

And, as is usually the case in litigation, what's good for the goose is good for the gander.  In other words, the defendant responded to the plaintiff's Facebook request by issuing a Facebook request of his own.  The plaintiff had alleged that he was "disabled or limited in his normal activities" and that his disabilities were "possibly permanent."

So the defendant sought access to the plaintiff's Facebook account on the grounds that the account may contain evidence of the "extent and severity" of the plaintiff's injuries. The defendant supported his motion with pictures of the plaintiff "socializing" at a bar and "drinking at a party," which the defendant had obtained from the publicly available portions of the plaintiff's Facebook account.

The court was not persuaded, though, explaining that the plaintiff had not alleged that he was so disabled that he was unable to leave his home and that the pictures were not "inconsistent with plaintiff's alleged injuries."

Motions Denied: Unfettered Access to Accounts Unnecessary

The parties' cross motions to compel both sought to have the Court require the other party to turn over his username and password to his Facebook account.  Judge Wettick rejected the idea, ruling that a blanket request for log-in information is just plain unreasonable. A party does not get free-reign access to non-public social-networking posts of his opposing party merely because he asks the court for it. To enable a party to roam around in an adversary's Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and [] cause embarrassment if viewed by persons who are not 'Friends'.'"

Before a requesting party will be granted "access" to a Facebook account, the party must show a "sufficient likelihood" that the non-public postings would contain information that is relevant to the litigation that is "not otherwise available."  Otherwise, the court held, Rule 4011(b), which protects against discovery that is unreasonably annoying or embarrassing, prohibits unfettered access to a social-networking site.

Brava, Judge Wettick, Brava!

The ruling in Trail is a refreshing example of well-reasoned legal analysis applied with common sense.  It is a bad idea for any person to voluntarily turn over his password to any online account to another person.  And it is an equally bad idea to request that a court facilitate such a practice. Yet, much to my disappointment, this is a practice that has become more common in the past few years, as courts struggle to deal with questions relating to discovery of social media and other forms of electronic evidence.  The opinion's holding sets an important baseline for discovery of social-networking content.  Specifically, a litigant will not be ordered to turn over his password or other log-in information to an opposing party to enable that party to gain unfettered access to the litigant's social-networking site.

Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 3, 2012).

Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.  

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