It has become common for litigants to scour the Internet in search of evidence about an opposing party or witness. Increasingly, social networking sites such as Facebook and Myspace are proving to be a treasure trove of impeachment evidence for litigants, particularly in the practices areas of personal injury, workers’ compensation, and insurance coverage. Social networking sites are proving to be a low-cost, high-yield form of discovery that can produce incredibly damaging personal information of a party.
In Dexter v. Dexter, the mother in a bitter custody dispute documented on her Myspace page that she was a sadomasochist, bisexual pagan, who would consider drug use while her daughter was asleep and had in fact used drugs in the past. “Smoking gun” evidence like this has become the norm, not the exception. As long as the information sought is relevant or likely to lead to the discovery of relevant evidence, some courts have been willing to allow the discovery of a party’s social networking material.
Increasingly, courts are compelling not only the production of “private” portions of Facebook pages, but also the production of the actual passwords to the pages themselves, thereby granting opposing counsel personal access to the pages. For litigants in Pennsylvania, however, an unofficial litmus test seems to be emerging, requiring counsel to have at least an indication that the content of the social networking site will contradict a litigant’s testimony or claims, before the court will grant access to “private” social networking sites and thus the information they contain.
Current Law: A Divergent Landscape
Appellate courts of Pennsylvania have yet to decide the issues involving the privacy and discoverability of a person’s social network accounts. Several trial courts have ordered the production of a user’s Facebook information. The method by which this is ordered and the restrictions placed on counsel have varied. Recently, however, some trial courts are denying these requests.
According to case law ordering social media production, “only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets” and “…it is clear that material on social networking websites is discoverable in a civil case.”
Perhaps the most cited Pennsylvania trial opinion ordering the production of a litigant’s passwords to social networking pages is McMillen v. Hummingbird Speedway Inc. There, the plaintiff filed suit in connection to a motor vehicle collision when the defendant rear-ended him during a “cool down lap” of a stock car race. The plaintiff alleged several injuries including permanent impairment and inability to enjoy life’s pleasures. Through interrogatories the defendant asked the plaintiff if he belonged to any social media sites and if so, to provide the address and respective log-on information required for access, including the screen names and passwords. The plaintiff stated that he did have a Facebook account but objected to producing log-in information on the grounds of confidentiality. After viewing the public portions of the plaintiff’s Facebook account, which showed the plaintiff on a fishing trip and attending the Daytona 500 race, the defendant filed a motion to compel discovery, requesting that the plaintiff provide all necessary log-in information. The defendant sought “comments which impeach and contradict his disability and damage claims.” The plaintiff argued that the court should recognize that communications shared between friends on social networking sites is confidential, and therefore protected against production.
The ultimate Order required the plaintiff provide his Facebook and Myspace user names and passwords to defense counsel. The court went further and built in an anti-spoliation order prohibiting the plaintiff from taking any steps to delete or alter existing information and posts on his social networking sites. Finally, the court dictated that only defense counsel has access to the accounts, and that the log-in information should not be provided to the parties directly. The Hummingbird approach requiring forced password production has not been an anomaly.
Privacy vs. Discovery
Other courts have recognized the defendant’s need for information on social networking sites, yet have struck a balance between the defendant’s need for discovery and the plaintiff’s privacy concerns. A few weeks after Hummingbird, along very similar reasoning, the court in Romano v. Steelcase granted the defendant access to the plaintiff’s social networking sites, but did not explicitly require the plaintiff to turn over passwords. In Romano, the defendant sought access to the plaintiff’s current and past Facebook and Myspace pages on the grounds that the public portions of the plaintiff’s profiles showed content that was inconsistent with her claims for loss of enjoyment of life. The plaintiff’s public portion of her profile showed her smiling happily outside the confines of her home, despite her claim that because of her personal injuries she is largely confined to her home. The court concluded that the presence of inconsistent information on the public portion of the profile created a fair inference that the private portions of the profile also contained contrary discoverable information.
Like the Hummingbird Court, the Romano Court acknowledged the superseding need of the defendant to have the information contained on the social networking sites as without them, the defendant would be at a distinct disadvantage.
The Romano order required that the plaintiff provide the with defendant access to her current and past Facebook and Myspace pages, including all deleted and relevant information. The plaintiff had to deliver to defense counsel a properly executed consent and authorization which may be required by Facebook and Myspace, permitting the defendant to gain access to the pages, both past and present. While this granted access to the material on the pages, it was not an explicit order to compel the discovery of the passwords themselves.
Pursue What is Relevant
Still, a third approach uses in-camera review of the parties Facebook and Myspace accounts. In Offenback v. L.M. Bowman Inc., the plaintiff claimed to have suffered shoulder and lower-back injuries leading to a limited ability to stand, sit, bend, push and pull after the collision. Additionally, he claimed the injuries limited his ability to ride his motorcycle which led to a decreased sociability and lack of intimacy. Previously, the court had been provided the password and log-in information directly for the review and concluded that very little of the plaintiff’s Facebook account was relevant to the case before the court and not likely to lead to the discovery of relevant evidence.
However, the court did find some information in the profile relevant within the meaning of Rule 26(b), including photographs and postings showing the plaintiff continuing to ride motorcycles, including a recently purchased one, after the accident. There was also information that he traveled via motorcycle to West Virginia and Pennsylvania, and pictures depicting the plaintiff hunting, along with postings indicating that he may have recently ridden a mule.
Not all courts are embracing the production of evidence on Facebook and other social networking sites. In Piccolo v. Paterson, defense counsel filed a motion to compel after learning from the plaintiff during her deposition that she had a Facebook page. When defense counsel attempted to access the page, it became evident that the page was set to “private.” Counsel then demanded that the plaintiff accept its “friend request.” However, counsel for the plaintiff successfully argued that at the plaintiff’s deposition she was only questioned about photographs, several of which had already been provided and there was no assertion that the textual posting on the Facebook page would likely lead to the discovery of material evidence. The judge denied the motion.
In Arcq v. Fields the court also denied defense counsel’s Facebook discovery request, reiterating the issue in Piccolo, that there was nothing apparent to defense counsel that the production would likely lead to admissible evidence. Defense counsel argued that the plaintiff had put his medical, physical and mental conditions at issue in the case where at deposition he had testified that he was incapable of participating in certain activities after an accident. Defense counsel sought via interrogatory the “username and password to any social networking website to which plaintiff belongs.”
Despite citing all of the positive authority discussed supra, the Arcq court denied defense counsel’s motion to compel on the grounds that in all of the positive authority cited by defense counsel, the defendant sought Facebook evidence after having viewed the “public” portion of the plaintiff’s Facebook profile and believed based upon that there would be additional information that would be relevant. Here, defense counsel had not alleged any basis for believing that the plaintiff’s profile would contain information relevant to the pending matter. There was no basis for their request beyond asking in the interrogatories. The court felt “viewing relevant information on the public profile acts as a gateway to the private profile and the court cannot simply assume that plaintiff has posted relevant information on his private profile.”
Considerations for Claims
There are several considerations that the claims professional should keep in mind when seeking discovery of social networking evidence. First, because most states follow the scope of discovery as set forth in Federal Rule of Civil Procedure 26, that discovery must be 1) relevant, and 2) if not admissible, reasonably calculated to lead to the discovery of admissible evidence, it is critical that your counsel be able to demonstrate their requests meet this standard with specificity.
Second, appreciate the novelty of this topic. There is little authority available, and almost none of it, thus far, is binding authority. As discussed there are several ways courts are approaching litigants who seek the production of social networking discovery. Counsel should be aware of these differing approaches and ambiguities and be prepared to cite non-binding authority from other jurisdictions when necessary.
Third, a similarly novel issue the ethical boundaries of gathering social networking discovery. Counsel and litigants should consult their local jurisdiction’s ethics rules and advisory opinions for the most updated rulings on these matters. In a recent advisory opinion, the Philadelphia Bar Association tackled the following question: What are the ethical implications of an attorney gaining access to a third-party witness’ Facebook or Myspace page via another third-party who, at the behest of the attorney, “friends” the target witness, makes entirely truthful statements, but does not disclose his or her affiliation with the attorney? Among several other rules and considerations, the opinion disagrees with such conduct and found it to be deceptive, and therefore improper, within the meaning of Rule 8.4(c).
Finally, the social networking landscape is constantly in flux with sites entering and leaving the use of the mainstream public frequently. Insurers should have counsel make inquiries into not only social networking sites currently in vogue, but also those that have lapsed in popularity as they may also contain important discovery preserved in time.