In today’s digital and virtual society in which almost everyone has some sort of social networking page, it is critically important for attorneys to be aware of what is discoverable in a personal injury lawsuit. Currently, there is a dearth of Pennsylvania appellate case law on the issue of discoverability of nonpublicly viewable Facebook information (i.e., “private” photographs, wall posts, status updates and, inter alia, friend lists). However, several lower court opinions on this topic have recently been issued. A plurality of the decisions suggest that there should be a threshold demonstration that the nonconfidential Facebook information is likely to contain or lead to admissible evidence.
In Zimmerman v. Weis Markets, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Northumberland Cty), a defendant demonstrated that publicly viewable portions of a plaintiff’s Facebook and Myspace pages (specifically, status updates and photographs) were inconsistent with his claim that he was permanently injured. Specifically, the plaintiff, Rane Zimmerman, was injured in a forklift accident. At his deposition, Zimmerman testified that he never wore shorts because he was embarrassed by a scar he had sustained from the accident. However, on the public portion of his Facebook page, he posted photographs that showed him wearing shorts and his scar was clearly visible.
