Discovery • Social Network Web Sites • Non-public Pages

Zimmerman v. Weis Markets, Inc., PICS Case No. 11-0932 (C.P. Northumberland May 19, 2011) Saylor, J. (7 pages).

In this personal injury case, defendant was permitted to discover plaintiff’s non-public portions of his social network pages. Motion to compel granted.

Plaintiff Rane Zimmerman was injured while operating a forklift at defendant Weis Markets’ warehouse. Zimmerman sought damages for the injuries caused to his left leg, including lost wages, lost future earning capacity, pain and suffering, scarring and “embarrassment.” He claimed that his health was seriously and permanently impaired and he had a permanent reduction in his ability to enjoys life and life’s pleasures.

Weis Markets reviewed the public portion of Zimmerman’s Facebook page and discovered that he included “ridin” and “bike stunts” as his interests and his MySpace page contained more recent photographs showing Zimmerman with a black eye and his motorcycle before and after the accident. There were also photographs of Zimmerman wearing shorts, with the scar from the accident clearly visible. This was important because Zimmerman claimed in his deposition that he never wore shorts because he was embarrassed by his scar.

Based on the content of the publicly available portions of Zimmerman”s Facebook and MySpace pages, Weis Markets believed that there could be other relevant information regarding Zimmerman’s damage claims on the non-public portions of these pages. Zimmerman argued that his privacy interests outweighed the need to obtain the discovery material.

Weis Markets urged the court to adopt the holding in McMillen v. Hummingbird Speedway, Inc. , 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (C.P. Jefferson Sept. 9, 2010), which granted access to plaintiff’s social network pages. The court agreed with the rationale of McMillen, the only Pennsylvania case to address this issue. The McMillen court reasoned that the pursuit of truth was “a paramount ideal.”

The court also relied on Romano v. Steelcase, Inc ., 907 N.Y.S.2d 650 (Suffolk Co. 2010), in which the defendant gained access to its initial information from the public portions of the plaintiff’s Facebook and MySpace accounts but sought access to the non-public portions of these sites, arguing that additional evidence relating to plaintiff’s damages claims would be found. The Romano court determined that denying defendant the opportunity to access these sites would go against the liberal discovery policies of New York but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

The court noted that the authorities recognized that these social network sites did not guarantee complete privacy. In addition, Facebook’s privacy policy explains that users’ content may become publicly available. The court found that there could be no reasonable expectation of privacy in the information posted to these sites.

Pennsylvania has a liberal discovery policy. Zimmerman placed his physical condition in issue and Weis Markets was entitled to discovery related to that issue. The court determined that there was a “reasonable likelihood of additional relevant and material information on the non-public portions of these sites.” Zimmerman voluntarily posted all the pictures and information to share with other users of these sites, and cannot now claim to have a privacy interest in the posted material.

“[A]ny relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.” Weis Markets’ motion to compel was granted.