By Jennifer Tis, Esq.
Undoubtedly, social networking sites such as Facebook will change the face of the legal practice in a number of ways, some foreseeable, some not. Already, Facebook has been used in criminal investigations, used for “cyber-bullying” and has been the subject of privacy disputes due to school administrations’ use of Facebook to suspend students for activities such as underage drinking.
Facebook has also been a sought-after source of information for attorneys involved in active litigation in a variety of areas of the law. Whether it’s a civil or criminal matter, a case can often be expeditiously closed due to a few posts made by either the Plaintiff or Defendant on Facebook or other social networking site. Often times, however, an individual’s public posts may not reveal much in regards to an active litigation matter though the individual’s private posts and messages may disclose much more. The question is, how can an attorney ethically gain access to the private information located within an opposing party’s social network site?
It is tempting to have another individual, such as a friend, secretary or paralegal, send a “friend request” to an opposing party in order to gain access to the information that is not made public on their Facebook page. To do so, however, would violate a number of the Pennsylvania Rules of Professional Conduct, including, but not limited to, Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) and 8.4 (Misconduct).
Rather, there are a few non-binding cases out there that suggest that private information from an individual’s social network site may be obtained through discovery requests. One case in particular comes from Jefferson County, Pennsylvania and illustrates what may be Pennsylvania’s emerging view toward discovery and social networking sites. In McMillen v. Hummingbird Speedway, the Plaintiff claimed that he was injured when the Defendant rear-ended him during a cool down lap after a stock race.
After the Plaintiff posted information on the public portion of his Facebook and MySpace accounts which indicated that he may not actually be injured, the Defendant requested Plaintiff’s usernames and passwords to his social network accounts in Interrogatories. The Plaintiff objected to this request and the Defendant filed a Motion to Compel. The Court granted Defendant’s Motion and ordered the Plaintiff to produce his usernames and passwords to his Facebook and MySpace accounts to Defendant’s counsel, only (the Defendant, himself, was not permitted access to the accounts). The Court further ordered that the Plaintiff was prohibited from taking steps to alter or delete existing information or posts from his Facebook and MySpace accounts.
The Court stated: “Under Pennsylvania’s broad discovery rules, as long as it is relevant to the litigation, whether directly or peripherally, a party may obtain discovery regarding any unprivileged matter. Pa.R.C.P. 4003.1.” McMillen v. Hummingbird Speedway, 2010 Pa.Dist. & Cnty. Dec. LEXIS 270, 2. “In this case, the Plaintiff asked the Court to recognize communications shared among his private friends on social network computer sites as confidential and privileged and thus protected against disclosure.” Id, at 3.The Court noted that Pennsylvania law does not favor evidentiary privileges “for they are in derogation of the search for the truth.” Id, (quoting) Hutchison v. Luddy, 414 Pa. Super. 138, 606 A.2d 905, 908-09 (Pa. Super. 1992) (quoting) Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).
The Court also pointed to the terms and privacy policies of both Facebook and MySpace stating that they “clearly express the possibility of disclosure” barring the Plaintiff from successfully maintaining that the element of confidentiality protects his Facebook and MySpace accounts from discovery. Id at 10.
The Court went on to state “whatever relational harm may be realized by social network computer site users is undoubtedly outweighed by the benefit of correctly disposing of litigation.” Id, at 11.
The fact that the Plaintiff first posted public information that was relevant to the matter and, therefore, suggested that additional relevant information may be located in the private sections of his Facebook and MySpace pages was clearly taken into account. Had he not made the public posts, I believe that the Court may have ruled differently.
Although this case is not binding, it may be an indication of what is to come from Pennsylvania Courts with respect to social networking sites and litigation. Will Pennsylvania adopt a narrow interpretation of confidentiality? Only time and additional ill-advised posts from plaintiffs and defendants will tell.