Posted on November 23, 2011
Given the infancy of social networking as a widespread national phenomenon, it is no surprise that state and federal courts are just now beginning to address the admissibility of evidence derived from such sites as Facebook, Twitter and LinkedIn. On November 7, 2011, the Franklin County Pennsylvania Court of Common Pleas had its first opportunity to rule on this issue in the personal injury-related case of Largent v. Reed. Its ruling in that case is an encouraging sign for those employers and defendants who find themselves embroiled in an e-discovery mêlée.
In , the Franklin County Court of Common Pleas was asked to rule on the Defendant’s Motion to Compel, and to determine to what extent online social networking information is discoverable in a civil case. That case arose out of a chain-reaction auto accident initiated by the Defendant, Jessica Rosko. As a consequence, the Plaintiff, Jennifer Largent, alleged that she suffered serious and permanent physical and mental injuries, pain, and suffering. During the Plaintiff’s deposition, however, it was discovered that Ms. Largent had a Facebook profile which contained information that contradicted her claims of a serious and severe injury (she had posted several photos showing her enjoying life with her family and had added a status update about going to the gym). Ms. Largent’s Facebook profile was public; meaning that anyone with an account could read or view her profile, posts and photographs.
The Defendant then filed a Motion to Compel Plaintiff’s Facebook Login Information on the good faith belief that the information posted to her Facebook profile was relevant to Ms. Rosko’s defense.
The Court began its analysis by reviewing the Pennsylvania Rules of Civil Procedure relating to the discovery of evidence, “[i]n Pennsylvania, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .” Pa. R.C.P.4003.1(a). The Court held that as far as the relevancy inquiry was concerned, “it is clear that material on social networking websites is discoverable in a civil case.” The Court then addressed whether privilege or privacy rights protected against the discovery; “there is no confidential social networking privilege under existing Pennsylvania law . . . and there is no reasonable expectation of privacy in material posted on Facebook.”
The Court added that there is also no general privacy privilege protecting Ms. Largent’s Facebook material from discovery: “No court has recognized such privilege, and neither will we. By definition, there can be little privacy on a social networking website. Facebook’s foremost purpose is to ‘help you connect and share with the people in your life.’ That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”
The Court further noted that, in filing a lawsuit seeking monetary damages, Ms. Largent placed her health at issue, which vitiates certain privacy interests. “Any posts on Facebook that concern Largent’ s health, mental or physical, are discoverable, and any privilege concerning such information is waived.” Accordingly, the Franklin County Court of Common Pleas held that the information sought was discoverable, and, consequently, granted the Motion to Compel. While the case has significant implications for the direction of social media and e-discovery laws in Pennsylvania, it is important to note that the ruling of the Franklin County Court of Common Pleas is not binding in Erie County, and there have been no Pennsylvania appellate court opinions that have addressed whether material contained on social networking websites is discoverable in a civil case. Nonetheless, the recent caselaw elucidates that (1) there is no confidential social networking privilege in Pennsylvania; (2) one should have no reasonable expectation of privacy in material posted on social networking sites; and (3) material posted on social networking sites may be discoverable in a civil case. These principles, although presented in this personal-injury related case, would also be true in the context of an employment-related civil suit.
Additional and periodic updates on the latest developments of e-discovery and social networking in Pennsylvania will be posted on this site as they become available. For further information, please contact a Knox Labor & Employment attorney at (814) 459-2800.
Article written by Joseph V. Balestrino.