Sometimes it seems that, in modern 21st Century America, privacy is a thing of the past. The National Security Agency scandals aside, many of us lay out our lives for all to see anyway voluntarily through various social media, especially Facebook. As a result, many lawyers and litigants, knowing that Facebook could be a treasure trove of revealing information, have taken more and more frequently to trying to secure that information through discovery.
Sometimes, the aforesaid discovery takes the form of interrogatories or requests for production of documents, but, it would seem, the most common way to try and secure Facebook information is to simply ask for a person’s user ID and password at a deposition. Obviously asking for this information at a deposition, and giving the attorney virtually immediate access to a Facebook account, does not allow the time for deletion or blocking or otherwise altering a Facebook account like other sorts of discovery could allow. The rub, of course, is that many people subject to such discovery refuse to provide the information and data on their Facebook profiles, claiming that information is private and/or irrelevant, which, inevitably, leads to motions to compel and similar litigation to force them to disclose and reveal it.
The main issue when dealing with Facebook information is determining how much privacy a Facebook user has over the information on his profile. What and how much information is intended to be private? How much is intended to be seen and/or accessed by the public? Does allowing one’s chosen Facebook “friends” to see this information somehow waive a right to privacy?
Judge R. Stanton Wettick, Jr.s’ comprehensive opinion in the matter of Trail et al. v. Lesko, et al., Court of Common Pleas of Allegheny County, Pennsylvania, Case No.: GD-10-017249, attempts to provide a framework with which Courts and attorneys can work to ensure that discovery of Facebook information is done properly and lawfully. In Trail, the parties sought to access the Facebook profiles of each other and they, naturally, resisted allowing the other party access to those profiles, which led to cross motions to compel in Trail.
When making his decision, Judge Wettick reviewed in detail no less than fifteen (15) different recent cases, mainly decided in Pennsylvania, but also decided in other jurisdictions as well, in order to get a clear sense of the workings of the fact finders on this matter. Upon review of the cases, the Judge found common themes which he then applied to Trail. Specifically, in order to validly pursue the discovery of the information on a Facebook profile, the Court determined that a party seeking the discovery must demonstrate that the information sought has relevance to the case at hand. In addition, the party seeking discovery must also “articulate some facts that suggest relevant information may be contained within the non-public portions of the profile” as opposed to simply guessing or presuming that the information sought could be there without a basis for so doing. To that end, courts have also used the publicly available information on a Facebook profile to help attempt to predict whether more, and relevant, information could be found in the private sections of the profile. These strictures serve the purpose of balancing a Facebook user’s privacy, and discouraging fishing expeditions into non-relevant private information, and a party’s right to secure relevant, and possibly significant, information to support his case.
In applying the above to the Trail case, the Court denied the attempt to discover information on both Facebook profiles. On the one hand, Plaintiff’s effort to discover the information on Defendant’s Facebook profile was denied because Defendant conceded the salient factual claims of Plaintiff’s case. Therefore, Plaintiff could not demonstrate that Defendant had any relevant information on the Facebook profile that was not already accessible and discovered through other means. The Court denied Defendant’s effort to discover the information on Plaintiff’s Facebook account as it could not articulate that it had any reason to suspect his profile would contain relevant information not discovered elsewhere.
In addition to the above, the Court further ruled that Pa.R.C.P. No. 4011(b) bars discovery of information that would cause “unreasonable annoyance, embarrassment, oppression…” and it noted that the guidelines described above regarding Facebook are consistent with the requirements of Pa.R.C.P. No. 4011(b). When applying Pa.R.C.P. No. 4011(b), the Court noted that the level of intrusion into someone’s privacy must be adequately balanced by the potential value of the intrusion to produce relevant information. The Court therefore ruled that the parties’ effort to discover the information on the other’s Facebook profile, which was not demonstrated to produce significant relevant information, would not have sufficient value to justify the intrusion into the privacy one has over the information on a Facebook profile.
Through decisions like Trail and others, the law is slowly but surely catching up with the new realities that technology and social media present. Although digging into someone’s Facebook profile may be tempting and attractive to clients and practitioners alike, especially considering how much revealing information people put onto their profile, the Court has made it clear that there will not be an unregulated bonanza of information-gathering. Cases like Trail, which proffer sensible, and likely influential, guidelines for discovery of social media, are now laying the groundwork for future cases at higher levels of the appellate process to confirm and formalize those guidelines into the near future. Get prepared and become familiar with these guidelines as they are quickly becoming an integral part of discovery law, rules, and procedures.
Originally published in Upon Further Review on February 18, 2014 which can be seen here.