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Discovery Rulings Increasingly Unfriendly to Facebook Users' Privacy Rights

Wednesday, November 27, 2013

By Michael B. Pullano and Matthew G. Laver

Michael B. Pullano, a partner with Weber Gallagher Simpson Stapleton Fires & Newby LLP in Philadelphia, represents a broad corporate client base in a variety of matters, including general commercial disputes, employment practices and catastrophic injury litigation. Pullano can be reached at (215) 972-7909 or

Matthew G. Laver, an associate at Weber Gallagher's Philadelphia office, focuses his practice on professional liability and has particular experience in the defense of lawyers. Laver can be reached at (267) 519-4979 or

The Associated Press reported May 1 that there are currently 1.1 billion people using Facebook worldwide.1 This figure represents a 23 percent increase from the prior year, and it is reported that Facebook has 665 million active users per day. The 372,563 cases filed in the U.S. federal district courts in 2012 seem paltry by comparison.2 Even if one were to account for all the cases filed in every state in the country, this number would not be in the same stratosphere as the number of daily Facebook users. Against this backdrop, there can be little doubt that the intersection of Facebook and the law will continue to be shaped by the judiciary as it is faced with a population of Facebook-using litigants.

An important issue before the court system, born from the technological and intellectual advances of social media, is the proper application of privacy within the scope of a lawsuit and the confines of a courtroom. This subject was addressed in an order issued by Judge James P. Cullen of the Pennsylvania Court of Common Pleas, Lancaster County, in Peronne v. Rose City HMA.3 In particular, Cullen ruled upon the discoverability of a party's Facebook login information (i.e. user name and password) and content generally in balancing the relevance of the material against individual privacy concerns. Cullen's decision reinforced the precept that like all physical documents, photographs and other tangible items, social media content is discoverable when relevant to a claim or defense. Notably, however, Cullen diverged from prior Pennsylvania jurisprudence in his ruling when he ordered the retention of a neutral forensic expert to conduct an examination of the electronic materials, rather than compelling production of private login information.

I. A Snapshot of Permissible Access to Facebook Content in Pennsylvania
Prior to Cullen's ruling in Peronne, Judge John Henry Foradora of the Pennsylvania Court of Common Pleas, Jefferson County, considered similar social media concerns in McMillen v. Hummingbird Speedway, Inc.4 In McMillen, the plaintiff filed suit for an injury sustained in a rear-end car accident. During discovery, the plaintiff confirmed that he maintained a Facebook account but refused to produce login information, despite the defendant's formal request that he do so. Thereafter, the defendant filed a motion to compel “to determine whether or not plaintiff has made any other comments [in a social media forum] which impeach and contradict his disability and damages claims.”

In ruling that the plaintiff must produce his Facebook login information, the trial court concluded that “no social network site privilege has been adopted by our legislature or appellate courts.” The court further concluded that as a general matter, “Pennsylvania law does not favor evidentiary privileges.”

Foradora's opinion examined the terms and conditions that go along with the use of Facebook and held as follows:

Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people … while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.

Foradora stated that a reading of the privacy policy of Facebook “should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else.” Moreover, in the judge's opinion, the relationships fostered through social media are “basic friendships, not attorney-client, physician-patient, or psychologist-patient types of relationships, and while one may expect that his or her friend will hold certain information in confidence, the maintenance of one's friendships typically does not depend on confidentiality.” Based on the foregoing, the court concluded that there was no compelling privacy and/or privilege rationale that should prevent the production of login information, which could lead to the discovery of information relevant to the prosecution or defense of a lawsuit.

Less than a year after the McMillen decision, Judge Charles H. Saylor of the Pennsylvania Court of Common Pleas, Northumberland County, entered a substantially similar order in the matter of Zimmerman v. Weis Markets, Inc.5 In Zimmerman, the plaintiff was injured while operating a forklift. The defendant, upon review of the plaintiff's public Facebook profile, discovered the following: (1) the plaintiff's interests include “ridin[g] and bike stunts”; (2) photographs of the plaintiff with a black eye and his motorcycle before and after an accident; and (3) photographs of the plaintiff wearing shorts with the scar from the forklift accident clearly visible.6 The defendant sought production of the plaintiff's nonpublic Facebook content on the basis that there may be additional relevant information. The plaintiff contested this position, arguing that his privacy interests outweighed the need to obtain the subject discovery material.

Relying upon the holding in McMillen, the Zimmerman court found that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” The Zimmerman court also cited to Canadian case law7 wherein the Ontario Superior Court of Justice permitted access to a plaintiff's private Facebook profile, holding:

To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

In declining to adopt the plaintiff's argument regarding his privacy concerns, the Zimmerman court also considered that privacy concerns are afforded less weight where an individual chooses to disclose the information in the first place.

In declining to adopt the plaintiff's argument regarding his privacy concerns, the Zimmerman court also considered that privacy concerns are afforded less weight where an individual chooses to disclose the information in the first place. As such, the Zimmerman plaintiff was ordered to provide all passwords, user names and login names to the defendant.

On Nov. 8, 2011, Judge Richard J. Walsh of the Pennsylvania Court of Common Pleas, Franklin County, issued an opinion that echoed both McMillen and Zimmerman and also expanded upon the inquiry that must be made before delving into an individual's private social media content. In Largent v. Reed, under a similar set of facts as the case histories discussed above, Walsh held that a party seeking discovery of social media content must first demonstrate a threshold level of relevancy.8 This threshold is uniform for tangible items, as well as electronic content. Thereafter, Walsh noted that privilege “refers only to those [protections] recognized by the common law, statutory law, or the Constitution.”

With respect to the plaintiff's claim of privilege under Pennsylvania law, the court commented that no prior Pennsylvania court had recognized a general privacy privilege, and by definition, “there can be little privacy on a social networking website.” The court next contemplated whether privacy under Facebook fell within the scope of the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., which is incorporated within the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq. In finding that the SCA does not apply, the court explained that the law is designed to protect the privacy of entities that qualify as electronic communications services (ECS) and remote computing services (RCS).9 Specifically, the defendant sought information directly from the plaintiff, and an individual is not an entity regulated by the SCA. Having addressed the purported protections offered under Pennsylvania law and statute, the court declined to shield the plaintiff's Facebook content, determining that it was relevant to the litigation, and accordingly ordered production of all pertinent login information.

II. The Peronne Case
In Peronne, Grace Peronne was allegedly injured when she entered a hospital elevator, slipped and fell on a puddle of water and sustained significant injury. According to Peronne's counsel, attorneys for the defendants “subpoenaed every conceivable record for a period of ten (10) years predating this accident--8-10 inches thick of records, and none of those records revealed any prior significant neck pain nor any radicular arm pain.” The defense investigated the plaintiff's public Facebook profile and discovered undated photographs of the plaintiff “engaging in snow related activities.” The defense argued that these photographs were inconsistent with the plaintiff's claimed injuries, despite the plaintiff's protestations that the snow-related activities occurred prior to her fall-down accident.

When the plaintiff refused to provide her login information for Facebook, the defendants filed a motion to compel, arguing that the Facebook account may provide metadata that would document the dates that the photographs were taken. In response, the plaintiff argued as follows:

Defendant's invasions of Plaintiff's private Facebook settings will give them access to a host of Plaintiff's thoughts, feeling, communications, etc. … that are well beyond the limited purpose of searching for evidence of a non-existent date that the photographs/videos were taken. Defendant transforms an extremely limited and futile inquiry into an all encompassing fishing expedition through Plaintiff's private Facebook account, vitiating any legal standard applicable.

Without providing an opinion, Cullen entered an order of court May 3, instructing that the parties agree upon a neutral forensic computer expert to conduct an examination of the materials on the plaintiff's computer. Further, Cullen ordered the plaintiff to provide the expert with all necessary login information, such that the expert could access the private portion of the plaintiff's Facebook account and download the contents of the profile that were posted during the time period at issue. The expert was instructed to identify and copy all photographs and content occurring during the relevant period that depict and/or reference snow. Copies of relevant imagery and content were to be distributed to all counsel.

Cullen's order seems to draw from the prior Pennsylvania jurisprudence that permits a liberal discovery standard. However, unlike McMillen, Zimmerman and Largent, the Peronne court set limitations upon the discoverable content. These limitations include the retention of a neutral expert to conduct the investigation and also the narrow time frame to be examined. Rather than requiring the production of login information, which permits unfettered access, Cullen confined the scope of discovery to only that period that was at issue and was potentially relevant, i.e., post-accident Facebook profile content. Moreover, the judge granted the neutral expert with the leeway to determine which images and content were relevant to the litigation.

III. A Brief Survey of the Discoverability of Login Information
Numerous courts have grappled with identical issues and have rendered decisions that protect private social media content and also require disclosure of social media content. One such case occurred in the U.S. District Court for the District of Nevada, where the plaintiff sued her former employer for a variety of claims, including sexual harassment and intentional and negligent infliction of emotional distress.10 In Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., the defendant employer argued that the plaintiff may have had private and sexually explicit e-mail communications on a Myspace account that would serve as a defense to the claims enumerated in her complaint.11 In an effort to bolster this theory of defense, the defendant subpoenaed records from Myspace and also formally requested that the plaintiff execute a consent form allowing access to her private Myspace communications. Myspace declined to produce the private content without a search warrant, and the plaintiff refused to sign the consent on the basis that the defendant was on a “fishing expedition.”

The court declined to grant the defendant's subsequent motion to compel disclosure of the private content on two grounds; the first reason for ruling in the plaintiff's favor was based upon the admissibility of the prospective evidence to be gleaned from the private e-mails:

Defendant has, at most, raised a suspicion that Plaintiff may have subsequently engaged in sexually related email communications on the internet account … The accounts were opened several months after Plaintiff left Defendant's employment. Assuming that the account contains sexually related email messages exchanged between Plaintiff and others, such evidence would not be admissible to support Defendants' defense that their prior alleged sexual conduct was welcomed by Plaintiff.

The second basis for not permitting access to the MySpace account incorporated themes of relevancy:

Ordering Plaintiff to execute the consent and authorization form for release of all of the private email messages on Plaintiff's internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The court noted that the defendant could still serve the plaintiff with narrowly tailored discovery requests that seek Myspace content, provided that it specifically related to the claims at issue--to the extent that the defendant requested private content, including sexually explicit e-mails to unrelated third parties, the court opined that this information would not be deemed relevant.

In Romano v. Steelcase Inc., a New York trial court opined that “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.”12 When a plaintiff refused to provide access to the private portions of her Facebook account, the defendant filed a motion to compel. The court concluded that the information sought was relevant and material to the defense of the action and could lead to admissible evidence. Specifically, the court found that the plaintiff's public profile showed images of her “smiling happily … despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.” Based on this, the court determined there was a reasonable likelihood that the private portions of the Facebook account would provide further evidence regarding the plaintiff's activities and enjoyment of life, the same being relevant to the litigation.

A few months prior to the Romano decision, the U.S. District Court for the Southern District of Indiana issued an opinion requiring the production of private social media content. In EEOC v. Simply Storage Mgmt., LLC, the Equal Employment Opportunity Commission on behalf of two plaintiffs filed a complaint alleging sexual harassment.13 At issue in this case were the defendants' requests for production--in pertinent part:

(1) all photographs or videos posted by [Plaintiffs] or anyone on [Plaintiffs' behalf] on Facebook or MySpace … (2) Electronic copies of [Plaintiffs’] complete profile on Facebook and MySpace (including all updates, changes, or modifications to [Plaintiffs’] profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”) …

The EEOC objected to the scope of these requests for a variety of reasons, including that they would “improperly infringe on claimants' privacy and will harass and embarrass the claimants.” In reviewing this matter, the court noted that the challenge in addressing social media discovery issues is to “define appropriately broad limits” that adopt the court's liberal discovery policy.

The court explained that “anything that a person says or does might in some theoretical sense be reflective” of an individual's emotional state, but this alone did not afford the litigants with justification for requiring the production of every thought a party may have reduced to writing. In ruling that relevant electronic content must be produced, the court addressed the parties, stating that it acknowledged that the court order, which demanded production of broadly relevant material, was not the type of order that litigants favor because it is so vague. However, per the court, “Lawyers are frequently called upon to make judgment calls … about what information is responsive to another party's discovery requests.” And therefore the plaintiffs were instructed to produce all relevant social media content.

The developing case law illustrates the judiciary's support for a liberal discovery process.

IV. Conclusion

The developing case law illustrates the judiciary's support for a liberal discovery process. It appears that if a litigant can demonstrate a connection between the discovery sought and the claims raised, then the courts will require appropriate production. However, the case law also confirms that overly broad requests in the electronic context will not be permitted. To the extent that a litigant is asked to produce the entirety of his or her respective social media profile, this is ripe for a relevancy challenge by the nonmoving party.

Additionally, as seen in Peronne, there may also be a shift in who serves as the arbiter of discoverability--whereas the historical court decisions permitted the requesting party complete access via production of login information, Peronne employs the use of a neutral third party to make the relevancy determinations. The use of a neutral party is similar to the assignment of a discovery master, which is a practice that has gained acceptance in the legal community, and it can reasonably be anticipated that such orders will become commonplace as social media discovery disputes persist. Even though the use of social media is a fairly new concept, the courts are applying the principles of paper discovery to electronic communication. Accordingly, one's practice as a litigator, a businessperson, a company or individual relative to social media should mimic those procedures that exist for tangible discovery items. Should the judicial trends remain steady, one can plan accordingly for the evolving discoverability of social media content.

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