Due to the widespread popularity of social networking sites (“SNS”), courts have had to determine how the rules of discovery apply to content stored on such sites. In addressing this issue, many courts have required parties to provide opposing counsel the SNS content – such as emails and Facebook wall postings – that is relevant to the action, but have generally left SNS account owners in control of access to their accounts. For example, a Nevada district court denied a defendant’s motion to compel the plaintiff to grant the defendant access to the plaintiff’s MySpace account in order to obtain allegedly relevant communications.  Instead, the court determined that the “proper method for obtaining such information” was to serve a “properly limited” request for the production of relevant content. In a case where a plaintiff put the content of her former Facebook account and her state of mind at issue, a Connecticut district court required her to produce to the defendant all of the printouts of her account, which had been provided to her by Facebook, after an in camera review demonstrated that her initial determination of the relevancy of this information was too narrow. Although this decision may seem far-reaching, the defendant still had to rely on the plaintiff for production of the requested discovery.

Courts in New York and Pennsylvania, however, have expanded the methods of disclosure available to defendants for the discovery of SNS content. In Romano v. Steelcase, as discussed in a previous issue of Socially Aware, a New York trial court ordered the plaintiff to execute the necessary consent and authorization for the operators of Facebook and MySpace to provide the defendant with access to the plaintiff’s personal accounts. And a recent Pennsylvania decision, while relying on Romano, appears to have gone even further than the New York court.

In Zimmerman v. Weis Markets, the Pennsylvania trial court required disclosure to opposing counsel of the plaintiff’s passwords, user names and log in names in order to provide access to the non-public portions of the plaintiff’s personal Facebook and MySpace profile pages. Zimmerman, a former employee of Weis Markets, had brought an action seeking damages for injuries resulting from an on-the-job accident. He claimed both embarrassment from the subsequent scarring and that “he ha[d] sustained a permanent diminution in the ability to enjoy life and life’s pleasures.” Upon review of the public portion of Zimmerman’s personal Facebook and MySpace pages, Weis Markets discovered what it believed to be evidence that contradicted the claims – photographs taken after the accident depicting Zimmerman with his motorcycle and wearing shorts that left the scar on his leg “clearly visible.” The Zimmerman court determined that, “[b]ased on a review of the publicly accessible portions of [Zimmerman’s] Facebook and MySpace accounts, there was a reasonable likelihood of additional relevant and material information on the non-public portions of these sites.”

In response to Zimmerman’s argument that “his privacy interests outweigh[ed] the need to obtain the discovery material,” the court determined that since he had voluntarily posted all of the pictures and information on his Facebook and MySpace pages and intended to share them with other users of the sites, “he [could not] now claim he possesse[d] any reasonable expectation of privacy to prevent Weis Markets from access to such information.” Further, the court held that “[w]ith the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any 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.”

Commentators disagree on what Zimmerman ultimately means. One commentator suggests that such access is “equivalent to turning over a personal diary.” Another explains that “forcing a party to hand over his or her log-in information is not the correct result,” as it has the potential to provide the other side with access to irrelevant, non-discoverable, and/or private information. On the other hand, one commentator maintains that the policy “makes sense,” arguing that “if there is proof of relevant information contained within a social media account, then that account should be accessible by the side seeking it.” Another observes that, although these pages should be discoverable to an extent, the problem will be in deciding “where to draw the line,” and expressed concern that parties would abuse such a rule as a way to wear down the opposing side.  With such a mix of reactions, the issue is likely to become a hot topic as other courts determine whether to follow suit.