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Case Notes: Is private Facebook information subject to discovery?

Social media has permeated pretty much every aspect of our lives. Experienced attorneys use information posted on Facebook, twitter, tumblr, and other platforms as evidence in cases to paint a picture of someone's character or to show that they indulge in certain unseemly habits. But can an attorney request that you turn over passwords or information protected from the general public? Allegheny County recently addressed this exact question.

In Trail v. Lesko, No. GD-10-017249, Allegheny C.P. July 3, 2012, the Allegheny County Court of Common Pleas addressed two Motions to compel discovery. Both parties filed discovery requests asking for access to the other party's Facebook accounts. Judge Wettick reviewed various cases throughout Pennsylvania. Most of these were personal injury cases. In the majority of cases where discovery was granted, the Plaintiff had posted some public pictures of themselves enjoying life and presumably not being terribly injured. Those Common Pleas courts found that sufficient evidence existed (based on the public photos) that there would be additional photographs relevant to the case behind password protections.

Judge Wettick adopted much of this reasoning stating that "the party seeking the discovery needs to show only that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case." Without some showing, then the information may not be discovered as it is unreasonably "intrusive" and therefore protected by Pa. R.C.P. 4011(b). However, the level of "intrusion" for Facebook is low.

Although these cases dealt mostly with personal injuries, the reasoning could easily be extended to the family sphere. Discovery has become increasingly complicated in this age of media. If you are looking to divorce but need to request documentation from your spouse, you should consult with an attorney. My tip? Make your whole profile private so that there is no public information to find!