A Pennsylvania trial court recently became one of a growing number of courts to rule that a plaintiff’s non-public Facebook and MySpace postings are discoverable. On May 19, 2011, in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) the Court of Common Pleas of Pennsylvania granted the defendant’s motion to compel the plaintiff, a former employee of the defendant, to disclose his Facebook and MySpace passwords, user names and log in names. Notably, the Court reasoned that because the plaintiff voluntarily posted all of the pictures and information on his Facebook and MySpace sites, he had no reasonable expectation of privacy to the postings although the posts were on non-public pages.
Key to the Zimmerman Court’s decision was the fact that the defendant demonstrated that the public portions of the plaintiff’s Facebook and MySpace pages contained postings and pictures directly contrary to the plaintiff’s claim that a work related accident had caused his health to be seriously and permanently impaired. The Court held that: (1) because the plaintiff had put his physical condition at issue, the defendant was entitled to “discovery thereon” and (2) based on a review of the publicly accessible portions of the plaintiff’s Facebook and MySpace pages, there was a reasonable likelihood of additionally relevant information on the non-public portions of the social media sites. Specifically, despite the plaintiff’s deposition testimony that he never wore shorts due to his embarrassment of a scar on his leg from the accident, the public portions of his MySpace page contained pictures of the plaintiff in shorts with his scar visible, as well as recent pictures of the plaintiff with his motorcycle. In addition, the public portions of the plaintiff’s Facebook page stated his interests included “ridin” and “bike stunts.”
The Zimmerman Court was careful to warn that its decision should not be construed as authorizing “fishing expeditions” or a carte blanche entitlement to private Facebook and MySpace information in every personal injury case. The Court explained that in order to obtain access to a plaintiff’s private social media postings, a defendant must file a motion that makes a “threshold showing that the publicly accessible portions of any social networking site contain information that would suggest that further relevant postings are likely to be found by access to the non-public portions.” Thus, while courts are allowing the discovery of non-public social media postings with increased frequency, the Zimmerman decision provides an important reminder of the importance of early investigation of a plaintiff’s public social media presence.