The July 5, 2012 decision of the Allegheny County Court of Common Pleas in Trail v. Lesko explores the legal landscape relating to the scope of discovery of social media.
Judge Wettick spends the majority of the Lesko opinion laying the groundwork for his holding. The opinion begins with an introduction to Facebook and social networking sites, followed by a synopsis of nine Pennsylvania cases where the discoverability of social media was at issue (many of which were reviewed here) and an overview of the law in other jurisdictions. He notes that the "consistent train of reasoning" found in the case law is to require the party seeking discovery to point to facts suggesting that relevant information may be contained within the non-public portions of a Facebook profile. While privacy settings do not offer absolute protection from discovery, it appears that they can go a long way, as courts often use any profile content that is publicly accessible to determine whether a Facebook user's full profile is potentially relevant.
In Lesko, the plaintiff alleged serious injuries from a car accident, and the defendant originally claimed he was not the driver of the vehicle involved. In an increasingly popular attempt at debunking their opponent's factual assertions, the parties filed cross motions to compel access to each other's Facebook accounts.
Since the defendant denied driving the vehicle involved, plaintiff argued that postings surrounding the time period at issue were relevant to determine the defendant's whereabouts. However, in response to Plaintiff's Request for Admissions, the defendant admitted he was driving the car.1 Accordingly, Judge Wettick denied plaintiff's request, finding that the defendant's Facebook information was no longer relevant in light of his admission.
The defendant asserted that Facebook photographs of the plaintiff socializing at a bar and "drinking at a party" cast doubt on his claim of serious injuries. The Judge was not persuaded, however, noting that since the plaintiff never alleged that he was bedridden, the photos were not inconsistent with his alleged injuries.
In possibly the most useful part of the opinion for future litigants resisting discovery requests for social networking information, Judge Wettick maps out the basis for his opinion, explaining, "I base my rulings on Pa.R.C.P. No. 4011(b) which bars discovery that would cause 'unreasonable annoyance, embarrassment, oppression ...' This rule will reach intrusions that are not covered by any constitutional right to privacy or any common law or statutory privileges." The Judge explained that a blanket court order to provide Facebook login information likely allows access to much more information than is relevant to the litigation, which could be particularly embarrassing for a person who thought they were only sharing such information with "Friends." The opinion then clarifies that discovery must be unreasonably intrusive to be barred. Thus, although ordering court access to one's Facebook account might have the unfortunate consequence of causing embarrassment, the sharing of personal information that underlies the entire concept of Facebook can negate a user's claim to privacy.
With this overview of the current legal landscape memorialized in the Lesko opinion, it will be interesting to watch the law evolve as additional courts rule on the discoverability of social media. Regardless of what happens in the future, one aspect of the developing law has clearly emerged: if a Facebook post is publicly accessible, the user should be prepared to share that post and all related account information with anyone interested — "Friend" or foe.
Footnote
1 Question of the day: Did the defendant admit he was driving the car to avoid turning over his prized Facebook login information?
www.cozen.comThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
