It has become common for litigants to scour the Internetin 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 impeachmentevidence for litigants, particularly in the practices areas ofpersonal injury, workers’ compensation, and insurance coverage. Socialnetworking sites are proving to be a low-cost, high-yield form ofdiscovery that can produce incredibly damaging personal informationof a party.

In Dexter v. Dexter, the mother in a bitter custodydispute documented on her Myspace page that she was asadomasochist, bisexual pagan, who would consider drug use whileher daughter was asleep and had in fact used drugs in the past.“Smoking gun” evidence like this has become the norm, not theexception. As long as the information sought is relevant or likelyto lead to the discovery of relevant evidence, some courtshave been willing to allow the discovery of a party’s socialnetworking material.

Increasingly, courts are compelling not only the production of“private”portions of Facebook pages, but also the production of the actualpasswords to the pages themselves, thereby granting opposingcounsel personal access to the pages. For litigants inPennsylvania, however, an unofficial litmus test seems to beemerging, requiring counsel to have at least an indication that thecontent of the social networking site will contradict a litigant’stestimony or claims, before the court will grant access to“private” social networking sites and thus the information theycontain.

Current Law: A Divergent Landscape
Appellate courts of Pennsylvania have yet to decide the issues involving theprivacy and discoverability of a person’s social network accounts.Several trial courts have ordered the production of a user’sFacebook information. The method by which this is ordered and therestrictions placed on counsel have varied. Recently, however, sometrial courts are denying these requests.

According to case law ordering social media production, “onlythe uninitiated or foolish could believe that Facebook is an onlinelockbox of secrets” and “…it is clear that material on socialnetworking websites is discoverable in a civil case.”

Perhaps the most cited Pennsylvania trial opinion orderingthe production of a litigant’s passwords to social networking pagesis McMillen v. Hummingbird Speedway Inc. There, theplaintiff filed suit in connection to a motor vehicle collision when the defendant rear-ended himduring a “cool down lap” of a stock car race. The plaintiff allegedseveral injuries including permanent impairment and inability toenjoy life’s pleasures. Through interrogatories the defendant askedthe plaintiff if he belonged to any social media sites and if so,to provide the address and respective log-on information requiredfor access, including the screen names and passwords. The plaintiffstated that he did have a Facebook account but objected toproducing log-in information on the grounds of confidentiality.After viewing the public portions of the plaintiff’s Facebookaccount, which showed the plaintiff on a fishing trip and attendingthe Daytona 500 race, the defendant filed a motion to compeldiscovery, requesting that the plaintiff provide all necessarylog-in information. The defendant sought “comments which impeachand contradict his disability and damage claims.” The plaintiffargued that the court should recognize that communications sharedbetween friends on social networking sites is confidential, andtherefore protected against production.

The ultimate Order required the plaintiffprovide his Facebook and Myspace user names and passwords todefense counsel. The court went further and built in ananti-spoliation order prohibiting the plaintiff from taking anysteps to delete or alter existing information and posts on hissocial networking sites. Finally, the court dictated that onlydefense counsel has access to the accounts, and that the log-ininformation should not be provided to the parties directly. TheHummingbird approach requiring forced password productionhas not been an anomaly.

Privacy vs. Discovery
Other courts have recognized the defendant’s need for informationon social networking sites, yet have struck a balance between thedefendant’s need for discovery and the plaintiff’s privacyconcerns. A few weeks after Hummingbird, along verysimilar reasoning, the court in Romano v. Steelcasegranted the defendant access to the plaintiff’s social networkingsites, but did not explicitly require the plaintiff to turn overpasswords. In Romano, the defendant sought access to theplaintiff’s current and past Facebook and Myspace pages onthe grounds that the public portions of the plaintiff’s profilesshowed content that was inconsistent with her claims for loss ofenjoyment of life. The plaintiff’s public portion of her profileshowed her smiling happily outside the confines of her home,despite her claim that because of her personal injuries she islargely confined to her home. The court concluded that the presenceof inconsistent information on the public portion of the profilecreated a fair inference that the private portions of the profilealso contained contrary discoverable information.

Like the Hummingbird Court, the Romano Courtacknowledged the superseding need of the defendant to have theinformation contained on the social networking sites as withoutthem, the defendant would be at a distinct disadvantage.

The Romano order required that the plaintiff providethe with defendant access to her current and past Facebook andMyspace pages, including all deleted and relevant information. Theplaintiff had to deliver to defense counsel a properly executedconsent and authorization which may be required by Facebook andMyspace, permitting the defendant to gain access to the pages, bothpast and present. While this granted access to the material on thepages, it was not an explicit order to compel the discovery of thepasswords themselves.

Pursue What is Relevant
Still, a third approach uses in-camera review of the partiesFacebook and Myspace accounts. In Offenback v. L.M. BowmanInc., the plaintiff claimed to have suffered shoulder andlower-back injuries leading to a limited ability to stand, sit,bend, push and pull after the collision. Additionally, he claimedthe injuries limited his ability to ride his motorcycle which ledto a decreased sociability and lack of intimacy. Previously, thecourt had been provided the password and log-in informationdirectly for the review and concluded that very little of theplaintiff’s Facebook account was relevant to the case before thecourt and not likely to lead to the discovery of relevantevidence.

However, the court did find some information in the profilerelevant within the meaning of Rule 26(b), including photographsand postings showing the plaintiff continuing to ride motorcycles, including a recently purchased one, after theaccident. There was also information that he traveled viamotorcycle to West Virginia and Pennsylvania, and picturesdepicting the plaintiff hunting, along with postings indicatingthat he may have recently ridden a mule.

A De Facto Standard?
Not all courts are embracing the production of evidence on Facebookand other social networking sites. In Piccolo v. Paterson,defense counsel filed a motion to compel after learning from theplaintiff during her deposition that she had a Facebook page. Whendefense counsel attempted to access the page, it became evidentthat the page was set to “private.” Counsel then demanded that theplaintiff accept its “friend request.” However, counsel for theplaintiff successfully argued that at the plaintiff’s depositionshe was only questioned about photographs, several of which hadalready been provided and there was no assertion that the textualposting on the Facebook page would likely lead to the discovery ofmaterial evidence. The judge denied the motion.

In Arcq v. Fields the court also denied defensecounsel’s Facebook discovery request, reiterating the issue inPiccolo, that there was nothing apparent to defensecounsel that the production would likely lead to admissibleevidence. Defense counsel argued that the plaintiff had put hismedical, physical and mental conditions at issue in the case whereat deposition he had testified that he was incapable ofparticipating in certain activities after an accident. Defensecounsel sought via interrogatory the “username and password to anysocial networking website to which plaintiff belongs.”

Despite citing all of the positive authority discussedsupra, the Arcq court denied defense counsel’smotion to compel on the grounds that in all of the positiveauthority cited by defense counsel, the defendant sought Facebookevidence after having viewed the “public” portion of theplaintiff’s Facebook profile and believed based upon that therewould be additional information that would be relevant. Here,defense counsel had not alleged any basis for believing that theplaintiff’s profile would contain information relevant to thepending matter. There was no basis for their request beyond askingin the interrogatories. The court felt “viewing relevantinformation on the public profile acts as a gateway to the privateprofile and the court cannot simply assume that plaintiff hasposted relevant information on his private profile.”

Considerations for Claims
There are several considerations that the claims professional should keep in mind when seeking discoveryof social networking evidence. First, because most states followthe scope of discovery as set forth in Federal Rule of Civil Procedure 26, that discovery must be1) relevant, and 2) if not admissible, reasonably calculated tolead to the discovery of admissible evidence, it is critical thatyour counsel be able to demonstrate their requests meet thisstandard with specificity.

Second, appreciate the novelty of this topic. There is littleauthority available, and almost none of it, thus far, is bindingauthority. As discussed there are several ways courts areapproaching litigants who seek the production of social networkingdiscovery. Counsel should be aware of these differing approachesand ambiguities and be prepared to cite non-binding authority fromother jurisdictions when necessary.

Third, a similarly novel issue the ethical boundaries ofgathering social networking discovery. Counsel and litigants shouldconsult their local jurisdiction’s ethics rules and advisoryopinions for the most updated rulings on these matters. In a recentadvisory opinion, the Philadelphia Bar Association tackled thefollowing question: What are the ethical implications of anattorney gaining access to a third-party witness’ Facebook orMyspace page via another third-party who, at the behest of theattorney, “friends” the target witness, makes entirely truthfulstatements, but does not disclose his or her affiliation with theattorney? Among several other rules and considerations, the opiniondisagrees with such conduct and found it to be deceptive, andtherefore improper, within the meaning of Rule 8.4(c).

Finally, the social networking landscape is constantly in fluxwith sites entering and leaving the use of the mainstream publicfrequently. Insurers should have counsel make inquiries into notonly social networking sites currently in vogue, but also thosethat have lapsed in popularity as they may also contain importantdiscovery preserved in time.