Can a mother in a complex support action require the father to provide her with his Facebook login information to prove he has more money than he claims? Can a husband require his wife in a divorce action to disclose her private Facebook postings? Family law practitioners, as well as litigators in all other fields, should look for guidance to the Allegheny County Court of Common Pleas' opinion in Trail v. Lesko, No. GD-10-017249 (Pa. Commw. Ct. 2012).

Trail sets forth a balancing test with regard to the discoverability of Facebook content and provides a thorough analysis of findings throughout Pennsylvania (including unpublished decisions and holdings) and other jurisdictions on this issue. While Trail is not a family law case, it does provide a roadmap for the family law practitioner with regard to discovery of social media, such as Facebook.

With no guidance from the appellate courts, Pennsylvania trial courts have been left to create their own balancing test with regard to the discoverability of Facebook content. Specifically, the court in Trail denied both parties' requests for discovery of Facebook content, while providing a thorough summary of Pennsylvania case law, as well as other jurisdictions' holdings on this issue.

In Trail, each party was seeking access to the other's Facebook profile. The court ultimately denied both parties' requests based upon the protections provided by Pa. R.C.P. No. 4011 (b), which bars discovery "that would cause unreasonable annoyance [or] embarrassment." The plaintiff in Trail claimed that any Facebook postings surrounding the time of the incident (a car accident) could shed light as to whether or not the defendant was driving the vehicle. The plaintiff sought to compel Facebook to provide any deleted content from the defendant's profile. The defendant, on the other hand, sought access to the plaintiff's Facebook profile to prove the extent and severity of the plaintiff's injuries.

The court reasoned that granting an opposing party access to Facebook postings is intrusive, as it would provide the other party with a great deal of information that has nothing to do with the litigation, may cause embarrassment and was meant to only be viewed by friends.

Because it was found to be intrusive, the court reasoned, it is protected by Rule 4011 and therefore the party seeking discovery must show a sufficient likelihood that such discovery will lead to relevant evidence that is not otherwise available. The court found the level of intrusion to be minimal, a level 2 on a scale of 1 (the lowest) to 10 (the greatest), as the party resisting discovery had voluntarily made this information available, typically to numerous other people or friends.

Rule 4011 bars only discovery that is "unreasonably intrusive." In determining whether an intrusion is unreasonable, a court shall consider the level of the intrusion and the potential value of the discovery.

For a level 2 intrusion, the party seeking discovery needs only to show that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case. The use of the word "unreasonable" requires the court to balance the need for discovery and extent of annoyance, embarrassment, oppression, burden or expense.

The court in Trail denied both parties' requests for access to the other's Facebook profiles, finding "the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case."

In its analysis, the court provides a thorough review of all Pennsylvania cases that specifically address the discoverability of Facebook profile information. All of the Pennsylvania cases reviewed were common pleas decisions and all seem to follow a similar line of reasoning. "All of the Pennsylvania cases required a threshold showing of relevance prior to discovery of any kind, and nearly all have required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the nonpublic portions of the profile," the court held.

The court then reviewed other jurisdictions, including other state and federal decisions. The majority of these holdings have been in line with Pennsylvania case law, requiring some showing of relevance prior to ordering access to the sought-after information and disfavoring fishing expeditions. However, some jurisdictions have wrestled to establish a middle ground between the wholesale denial of the request and the granting of wholesale access to the user's profile on the other.

The federal district court in EEOC v. Simply Storage Management, 270 F.R.D. 430, 434 (S.D. Ind. 2010), set forth limits regarding the relevant time period one party could access and required counsel to provide the communications and photos from that time period (further inquiry as to what was or was not produced was permitted at the time of the party's deposition).

A minority of courts have required an in camera review of the Facebook profile; however, a Pennsylvania court found this places an unfair burden on the court in Zimmerman v. Weis Markets, No. CV-09-1535 (Pa. Commw. Ct. May 19, 2011).

Some jurisdictions apply a less stringent standard, reasoning that the purpose of social media, Facebook in particular, is to share information publicly and, therefore, one would have no "objectively reasonable expectation of privacy," as the court held in Leduc v. Roman, No. 06-CV-3054666PD3, [2009] O.J. No. 681, a Canadian loss of enjoyment case where the court found that emotional distress and state of mind are likely to be found on Facebook.

There is some divergence in discovery rules pertaining to social media, attributable to the type of claim being brought by the parties. Nevertheless, the majority of jurisdictions apply the "reasonably likely" burden, requiring a reasonable basis or public "factual predicate," such that revealed private information would likely provide relevant evidence and discovery is not a "fishing expedition."

Arguments raised by parties seeking to protect their Facebook content are (1) expectation of privacy; (2) undue burden on the parties or court; (3) authenticity of evidence; and (4) Stored Communications Act restrictions. The expectation of privacy issue is addressed on the basis that "the inherent purpose of [social networking media] undercuts any subjective expectation of privacy," according to Evan E. North's "Facebook Isn't Your Space Anymore: Discovery of Social Networking Websites," published in the Kansas Law Review.

Further, Facebook's privacy policy signals users that any and all content could become public. However, it is still important that counsel provide the court with a "narrowly tailored request" that specifies what types of communications they are seeking and the subject of those communications, e.g., private messages and the subject of those messages, as in Mackelprang v. Fidelity National Title Agency of Nevada, No. 2:06-cv-00788-JCM-GWF (D. Nev. Jan. 9, 2007). There is no objectively reasonable expectation of privacy involving social media when the basis for a discovery request pertains to a particular factual issue, regardless of personalized privacy settings. As in Leduc, "to permit a party claiming very substantial damages … to hide behind … privacy controls on a website, the primary purpose of which is to … share information … risks depriving the opposite party of access to material that may be relevant."

The argument that disclosure places an issue of "undue burden on the parties or courts" has been addressed by denying "fishing expeditions" and requiring counsel to narrow their requests to particular relevant communications, including subject matter, date and duration of discovery.

The argument that evidence procured from Facebook cannot be properly authenticated can pose problems because of hearsay, fake profiles and Internet puffery. However, witness testimony that presents hearsay authentication is typically not an issue for social media because one of the parties is usually the alleged profile user and can be cross-examined to rebut the claim.

Internet puffery and fake profiles can be an issue but typically can be authenticated based on actual photographs relevant to the claims and responsive postings from friends authenticating the evidence. In summary, courts have the ability to reduce some of the issues arising from discovery of private content on social media by applying similar traditional discovery rules.

Finally, the claim that communications on Facebook are protected by the Stored Communications Act fails, as the SCA regulates service providers, not individuals.

So what do we tell our clients? Close down your Facebook profile as soon as you file for divorce or support? I don't think so. As I always say to my kids, everything in moderation. If you have a client embroiled in bitter litigation and he or she posts 10 Facebook status updates daily, perhaps he or she needs to take a break. If you have a client who is on Facebook but only posts occasionally and really is just an observer, there's no need to modify his or her Facebook use.

Perhaps we should be begin reviewing our clients' Facebook profiles when they first come into the office in order to determine whether any modification of use is necessary or whether they have anything to worry about. •

Caren E. Morrissey is a partner in the family law group at Weber Gallagher Simpson Stapleton Fires & Newby. She focuses her practice on divorce and family law matters in Philadelphia's five county areas. Her practice includes child custody and visitation, child support issues and the division of marital assets and debts. She can be reached at 610-278-1510. Robert Oliver is a summer law clerk with the firm's family law group located in the Norristown, Pa., office.