Motion to Compel - Granted

A Pennsylvania judge orders the disclosure of a plaintiff's log in credentials to her Facebook page.

In the previous post, I discussed whether a motion to compel log in information would be successful.  Well, at least one judge in Pennsylvania thinks that there is absolutely nothing privileged or protected about posting on Facebook.  

For comparison purposes, Pennsylvania seems to follow the universal discovery standard: any topic that is "reasonably calculated to lead to the discovery of admissible evidence" is fair game.

I highly recommend reading the court's entire opinion in the matter of Largent v. Reed, but here are the primary holdings of the court:

1. By putting her physical and mental condition at issue in a personal injury lawsuit, the Plaintiff gives the defendant "a good faith basis for seeking material contained on [the plaintiff's] Facebook account."
2. There is no privilege under Pennsylvania law for Facebook posts, and "[t]here is no reasonable expectation of privacy in material posted on Facebook."
3. The Stored Communications Act does not apply to individuals as they are neither "electronic communications services" or "remote computing services" as defined by the Stored Communications Act.
4. Facebook posts and messages do not qualify as an overly broad or unduly burdensome discovery request.  The court notes that by "filing a lawsuit and seeking monetary damages, [the plaintiff] has 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 waiver."

As a final note, it seems the plaintiff's attorney in this matter attempted to cite cases by printing an online article from a newspaper and a post from a plaintiff's personal injury firm.  The court not-so-gently reminded counsel to provide a docket number "so that the Court does not need to conduct a wild goose chase to find the case."

Motion to Compel Access to Social Media

Will a court grant a motion to compel and force a party to disclose his or her password for social media websites or webmail services such as Gmail or Yahoo?

In the world of civil litigation, the magic words during discovery are "reasonably calculated to lead to the discovery of admissible evidence."  Courts tend to broadly construe this standard, so there is little that cannot be explored during a deposition or in a request for production of documents.

For example, in a personal injury case, it is quite common for the defense to obtain complete medical records for 10 years or more leading up to the incident, even if those records have absolutely nothing to do with the injuries claimed; e.g., a doctor's visit for a flu shot when the issue is a low back injury.  

Will a court grant the same liberal interpretation for e-mail and social media log-in information?  In Romano v. Steelcase, Inc., a state court in New York granted a motion to compel complete access to a plaintiff's social networking cites based in part because the plaintiff posted pictures of himself on a publicly accessible Facebook page.  Of course, another New York state court held less than a year later that a demand to access social media is not carte blanche for a "fishing expedition."  Carbollo v. City of New York.

The federal district courts seem to follow the same "fishing expedition" line of thought.  In Potts v. Dollar Tree Stores, Inc. 2013 U.S. Dist. LEXIS 38795, 117 Fair Empl. Prac. Cas. 1352, the court recognized that information posted to Facebook is neither privileged nor protected by common law notions of privacy; however, "the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view . . . ."  

In order to access the private portions of Facebook, the court held that there must be a preliminary showing "that the requested information is [wait for it...] reasonably calculated to lead to the discovery of admissible evidence."  Ultimately, this is the same holding as Romano.  As long as there is something indicating a party has posted discoverable evidence on private portions of social media, the opposing party has at least a good-faith argument for demanding access to it.

The take-away: don't go into the motion to compel hearing empty handed.  Have some evidence (preferably lots of it) that the other side has posted relevant and possibly admissible things on social media.  There are several ways to go about collecting this, but we'll save that for a later post.