In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the "paramount ideal" of pursuing truth favors liberal discovery of relevant information on social media sites.
In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff's objections to providing non-public portions of plaintiff's Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff's claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user's own risk.
The Zimmerman court remarked that:
"By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge. With the initiation of litigation to seek a monetary award based upon limitations 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."
Finding a reasonable likelihood that additional relevant information existed on the non-public portions of the social websites, the court ordered the plaintiff to provide all passwords and user names to the defendant, and preserve all existing information. The court referred favorably to several previous decisions in New York and Pennsylvania that also had granted access to social media information in discovery. See McCann v. Harleysville Insurance Co., 78 A.D.3d 1524 (N.Y.S.2d 2010) and Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Suffolk Co. 2010), as well as McMillen v. Hummingbird Speedway Inc., 2010 Pa. Dist. & Cty. Dec. LEXIS 270 (C.P. Jefferson Cty. 2010).
Employer Take Away: What should you as an employer take away from this development? The Zimmerman decision is yet another example of a court affording wide latitude with respect to discovery of social media sites, even in the face of privacy claims. Employer defendants seeking access to a claimant's social networking site information will generally still be required to make some threshold showing that the publicly accessible portions suggest that further relevant postings are likely to be found by access to the non-public portions.
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