COURTS OF COMMON PLEAS

CIVIL PRACTICE

Discovery • Social Networking Information • Facebook Profile • Motion to Compel

Largent v. Reed, PICS Case No. 11-4463 (C.P. Franklin Nov. 8, 2011) Walsh, J. (16 pages).

Information contained on plaintiff’s Facebook profile was discoverable because it was relevant, not covered by any privilege and the request was reasonable. Motion to compel granted.

This case stemmed from a chain-reaction automobile accident. Plaintiff Keith Largent was driving a motorcycle with plaintiff Jessica Largent as a passenger. At an intersection, defendant Jessica Rosko collided with a minivan, pushing the van into plaintiffs’ motorcycle. As a result of the accident, plaintiffs claimed serious, permanent physical and mental injuries, pain and suffering.

During the deposition of Jennifer Largent, defendant discovered that she had a Facebook profile that she used regularly and had accessed it the night before her deposition. This motion to compel was filed because plaintiff would not voluntarily turn over information about her Facebook account.

On Facebook, users can set their privacy settings to various levels and users have the ability to customize their privacy settings. Facebook friends may “tag” each other in any posting. Users know that their information may be shared by default and must take affirmative steps to prevent sharing of information.

Rosko moved to compel Largent to disclose her Facebook username and password. Rosko claimed that Largent’s Facebook profile was public and certain posts contradicted her claims of serious and severe injury.

First, the court noted that Pennsylvania discovery rules are broad, the relevancy threshold is slight and material on social networking Web sites is discoverable in a civil case.

Rosko claimed a good faith basis for seeking material on Largent’s Facebook account. The information she sought was relevant and might prove that Largent’s injuries did not exist or were exaggerated.

The court determined that there was no confidential social networking privilege in Pennsylvania and no reasonable expectation of privacy in material posted on Facebook because almost all information is shared with third parties.

Making a Facebook page private does not shield it from discovery because even “private” Facebook posts are shared with others.

The court also determined that the Stored Communications Act (SCA) did not prohibit the disclosure of Largent’s Facebook information. The SCA was enacted to fill gaps left by the Fourth Amendment to protect “digital and electronic worlds.” The act limits the government’s ability to compel Internet Service Providers to disclose information about users and limits ISP’s ability to voluntarily disclose information about their customers and subscribers to the government.

Here, Rosko sought information directly from Largent. The SCA did not apply in this case.

Finally, the court determined that Rosko’s discovery request was not overbroad. The reasonableness of a discovery request is made on a case-by-case basis. The court noted that photographs posted on Facebook are not private other postings are not the same as personal mail. Thus, there is little harm in disclosing that information. The court did not believe that allowing Rosko access would cause Largent unreasonable annoyance.