Written by attorney Michael Harris Fienman

Sharing Confidential Information through Social Media Is a Loosing Trial Strategy

It’s no secret, one of the most important parts of a civil lawsuit is the discovery phase. During this stage of the lawsuit, parties to the action are able to request documents, and ask questions of their adversaries in order to compile evidence necessary to support their case at trial. The advent of social media in recent years has forced courts to determine whether information posted on sites like Facebook and MySpace is discoverable.

Indeed, social media use has become ubiquitous and users routinely post information that reveals aspects of their personal lives for consumption on the internet. Even though social media sites allow users to manage exactly how their account is viewed by others, the terms and privacy policies of sites like Facebook and MySpace permit the site administrators to view all content stored on a user’s account. It is, therefore, important that attorneys understand the implications of social media, and its relationship to the law, if they want to remain current.

The potential for acquiring valuable information through online content posted to a witness’s or a litigant’s social media account is apparent. The September 9, 2011, Order of Jefferson County Common Pleas Judge John Henry Foradora tends to show that Pennsylvania Courts are willing to allow discovery requests for it.

When interrogatories request a party to provide their user names, login names, and passwords to social media networking sites, Pennsylvania Courts require that they be disclosed. In McMillen v. Hummingbird Speedway, Inc., et al. ( Court of Common Pleas of Jefferson County, Pennsylvania, Civil Division, No. 113-2010 CD, Opinion on Defendants’ Motion to Compel Discovery (Sept. 9, 2010), Defendants, sought access to Plaintiff McMillen’s social media accounts in order to ascertain the extent of his damages for injuries allegedly sustained during a rear-end accident that followed a stock car race. The public portion of McMillen’s Facebook account revealed comments about a fishing trip and his attendance at the Daytona 500 race in Florida, so a formal request to access to the non-public portions of the account was made on the premise that it may contain further evidence with respect to Plaintiff’s damages claim. McMillen objected to the disclosure on grounds that the non-public content was, by virtue of his privacy settings, private and confidential communications among online friends or users of the social media networking sites in at issue. McMillen requested that the Court recognize these communications as confidential and thus protected against disclosure. The court held that plaintiff did not satisfy the requirements to support a finding of privilege and that those who use social media networking sites could not reasonably expect communications and content posted to social media sites to remain confidential because the terms and privacy policies of sites like Facebook and MySpace allow site administrators (a third party) to view all content stored in user accounts. In its reasoning, the Court noted that under Pennsylvania law, evidentiary privileges are disfavored and narrowly construed. Further, the Court stated that, under these facts, the overriding objective to uncover truthful information in the prosecution or defense of a civil lawsuit far outweighs non disclosure.

Ultimately, Foradora required McMillen to turn over his Facebook and MySpace user names and passwords to Defense counsel. Defendants were to be provided with read-only access to McMillen’s social media accounts. The Order also specifically forbid McMillen from taking any action to delete or alter any existing information contained in his accounts.

Is this surprising? No, not really.

The general principles of discovery are neither new nor novel; however, their application by the Jefferson County Court is demonstrative of how the law can adapt to handle twenty-first century technology. Photos, status updates, profile information, invitations, friend requests, notifications and even messages between users, are all potentially discoverable. Now more than ever, it is important to monitor one’s online presence and ensure that the content posted or information shared with others is of the type that was intended to be made public.

Until higher courts rule on these issues, litigants ought to assume that the content stored on their social media accounts is discoverable, regardless of privacy settings. For most individuals, this means exercising caution, common sense, and a general awareness of what they are uploading on the social media site. Businesses must also be prudent when it comes to social media. Training employees on proper usage and implementing social media policies that clearly outline the organization’s expectations are critical to managing the potential risks associated with an employee’s use of social media.

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