“Facebook helps you connect and share with the people in your life.” But what if the people in your life want to use your Facebook posts against you in a civil lawsuit? Whether and to what extent online social networking information is discoverable in a civil case is the issue currently before the Court.
At the outset, it is important to point out that this is a pathetic excuse for a title of a motion. If I were a judge, I would deny the motion just based on this idiotic, although admittedly apt, title. (I’m kidding about this. I think.)
Defendant’s lawyers – a huge law firm in Pennsylvania – looked at the plaintiff’s Facebook account and found evidence that contradicted her claim of serious injury (often defined by defense lawyers as breathing without a look of agony).
The trial judge ultimately orders the plaintiff to turn over her Facebook username and password to the defendant’s attorney. This case is going to be used in the future to support the proposition that it is open season on every personal injury plaintiff’s Facebook account and that plaintiffs’ lawyers should just turn over the keys to plaintiff’s social media.
That’s probably not the case. According to the court’s opinion, the plaintiff’s Facebook page – which, importantly, was recently public and open to anyone – posted entries about going to the gym contradicting her sworn testimony that she needed to walk with a cane. This is what opened the door, not the mere fact of filing a personal injury lawsuit. In a footnote, the court wrote:
The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.
This footnote might not stop a forest of trees being spent by defense lawyers but it should help keep the floodgates from bursting open. Ultimately, I’m never excited to see someone turn over information that may be deeply personal but I think I would have reluctantly rule the same way if I were the judge in the case.
When you walk into a new area of discovery, there are so many side issues. Courts will be sorting out the nuances of Facebook discovery for years. Here’s one question: what if the plaintiff’s Facebook friends posted incriminating pictures of her? Can she tell those people to defriend her so that the defense lawyers cannot get their hands on them? Personally, I think that would be violating the spirit of the court’s order but this is just one of many sub-issues that are going to be out there in years to come.
You can read the court’s full opinion in Largent v. Reed here.