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Court "Comments" on Social Media Discovery

James W. Cushing, Esq. on 6/16/2015

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Article Image With the advent of social media, and its increasing popularity and pervasiveness, the law has been struggling to keep pace. As cases find their way to court, decisions have been entered which are making a path to guide the cultural changes which the extensive usage of social media has caused. One such case is the recent matter of McMillen, Sr. v. Hummingbird Speedway, Inc. et al., Court of Common Pleas of Jefferson County, Pennsylvania, Case No.: 113-2010 CD.

In McMillen, both the Plaintiff and Defendant were race car drivers. Defendant allegedly rear ended Plaintiff’s vehicle during a cool down lap following a stock car race and Plaintiff was seriously injured as a result.

As part of the discovery process from the resulting litigation from the aforesaid injury, Defendant requested the Plaintiff’s user name and password for his Facebook and MySpace accounts. The Plaintiff objected to the aforesaid discovery requests on the basis that his user name and password were privileged and, therefore, confidential.

Defendant followed up his discovery requests described above by reviewing the public portions of Plaintiff’s Facebook and MySpace pages and learning that the Plaintiff commented about a fishing trip and attending the Daytona 500 race after the crash described above. Defendant, of course, interpreted the above to reflect that Plaintiff’s injuries were not quite as grievous as he claimed, due to Plaintiff’s apparent ability to engage in the activities described on social media. Defendant argued that if the public portions of his social media accounts included such information, the private portions may be even more revelatory.

In analyzing the case, the Court surveyed relevant Pennsylvania discovery law. The Court reinforced that the overarching purpose of discovery is to help the parties, and the courts, discern the truth of a given situation. As a result, the Court noted that nearly any relevant materials are discoverable and further pointed out that not only does the law generally disapprove of claims of confidentially and/or privilege, there is currently no "social network site privilege," and Plaintiff cited to no authority, neither binding nor persuasive, as support for such a privilege. Indeed, quite the opposite, the Court found authority to suggest that, especially in the "less public area of discovery" (e.g.: someone’s private social media accounts), even greater latitude for discovery may be necessary in order to ensure all relevant and admissible evidence is secured.

According to current Pennsylvania law, a privilege ought not be recognized unless the Plaintiff can show: (1) the communications which are claimed to be confidential were expected not to be disclosed; (2) the confidentiality is necessary to maintain the relationship between the parties involved in the communication; (3) there is community agreement that such confidentiality should be fostered; and, (4) the injury sustained to the relationship due to the disclosure is outweighed by the benefit of disclosure to the litigation.

In applying the above law to the social media sites at issue in the case, the Court opined that it is unrealistic to expect posts on social media sites to be confidential. In support of this assertion, the Court went further and reviewed the privacy policies for both Facebook and MySpace and demonstrated that both allow for third parties to see the information posted (who could share it with others) and all posts are seen by the sites’ administrators.

The Court concluded that, based on the above, there is no reasonable expectation that a social media website user should have any expectation of confidentiality, let alone court enforceable privilege. As a result, the Court could not identify how Plaintiff’s claim for confidentiality satisfied the four factors listed above. Indeed, the Court could not say that any claim for confidentiality in this matter outweighed the benefit of discerning the truth in order to allow for the correct disposition of the litigation, for the potential for highly relevant which could impact the ultimate result of the case is significant.

Based on the above, the Court ruled that Plaintiff should submit to Defendant’s discovery requests and that when there is indication that a social media site could contain relevant information, access to those sites should be freely granted.

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