November 30, 2011
Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant -- Largent v. Reed
[Post by Venkat Balasubramani]
Largent v. Reed, 2009-1823 (Pa. Ct. of Common Pleas; Nov. 8, 2011)
Keith and Jessica Largent were involved in an accident in 2007. They sued Jessica Rosko and Sagrario Pena alleging negligence and loss of consortium. During Ms. Largent’s deposition, defense counsel realized that Ms. Largent had a Facebook profile and she “used it regularly to play a game called FrontierVille.” Largent refused to turn over any information about the account, and Rosko moved to compel Largent to disclose her Facebook username and password.
Rosko argued that Largent’s profile was “public,” and certain posts to Largent’s Facebook account contradicted her claims of “serious and severe injury.” Specifically, Rosko claimed that Largent posted photographers that depict her “enjoying life with her family and a status update about going to the gym.”
The court starts by noting that Pennsylvania discovery rules are broad and “the relevancy threshold is slight.” The court also notes that Rosko claimed a “good faith” basis for seeking the material in question: “[t]he information sought by Rosko might prove that Largent’s injuries don’t exist, or that they are exaggerated.”
If there is no applicable privilege or statutory bar, the information must be turned over. On the privilege issue, the court says:
[t]here is no confidential social networking privilege under existing Pennsylvania law. There is no reasonable expectation of privacy in material posted on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information.
As far as a statutory bar, the Stored Communications Act was the obvious possibility. The court recognizes the complexity around the statute and its applicability to the types of communications at issue, but says that “the minutae are irrelevant for [the present] purposes.” Only one court has addressed whether Facebook communications are covered by the SCA (Crispin v. Audigier) and the court distinguishes that case on the basis that in that case the information was sought directly from the provider. In this case, Rosko is seeking the information from Largent directly:
[t]he SCA does not apply because Largent is not an entity regulated by the SCA. She is neither a RCS nor an ECS, and accessing Facebook or the internet via a home computer, smartphone, laptop, or other means does not render her an RCS or ECS.
Largent argued that granting Rosko’s motion was akin to “asking her to turn over . . . her private photo albums and requesting to view her personal email,” and would cause embarrassment and annoyance, but the court rejects these arguments. With respect to the possibility of embarrassment, the court says that because the posts are not truly private anyway, there can be no credible argument that disclosing the information would cause unreasonable embarrassment. As to the issue of annoyance to Largent the court says, the costs will be borne by Rosko, and:
Largent can still access her account while Rosko is investigating.
The court orders Largent to turn over her Facebook login information to defense counsel within 14 days of the date of the order. Defense counsel then has a 21 day window in which to inspect Largent's profile. After this window elapses, the court says that Largent may change her password.
I think we can all agree that the court's reminder that just because you posted something on a social network does not mean that it's privileged or off-limits is useful. The court is also right that it is folly to assume that anything posted to a social network (or for that matter, anywhere) is truly "private." These points can't be made often enough. That said, I think as with other Facebook discovery disputes, the resolution here is clunky and fails to account for the varied nature of the information that is stored in someone's Facebook account. This may range from private, e-mail-like communications with someone's lawyer or psychologist (should be privileged) to pictures of you frolicking on the beach which are published without any privacy restrictions at all (which are not privileged and undoubtedly relevant). Under the court's order, this distinction does not matter, and defense counsel is free to rummage around in Largent's Facebook account freely. (Kash Hill blogged about a discovery dispute with a similar result. A divorcing couple was forced to swap Facebook and dating site log-ins: "Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords.") Some intrusion is expected and tolerated when you bring a claim for personal injury and maybe this is the cyber version of the independent medical examination. [As a sidenote, while it's problematic to delete any profiles while litigation is pending, if you are the plaintiff and you assert a claim for personal injury, you may want to delete your profile or deactivate it before you file suit. Added: check with your lawyer before you delete any profiles. Someone pointed out that the duty to preserve evidence arises before you file suit, so the pre-suit deletion of profiles may be ill advised.]
Of course, sharing your Facebook credentials with a third party is a violation of Facebook's terms of service--we all know that accessing a site in violation of its terms of service can come with stiff criminal penalties (the court even cites to US v. Drew in its order).
I don't have a great solution for this. It would be nice if Facebook allowed you to generate some sort of log of all of the items you have posted or sent around. This way the parties and the court can focus in on what's relevant without an opponent having to rummage around in your account.
In the meantime, if you are a litigant in a civil lawsuit and you post something online that you hope some folks don't see, just as with email, or any electronic media for that matter, realize that IT WILL COME BACK TO HAUNT YOU.
[NB: the court's order has some nice snark, including footnote 3: "Facebook currently does not allow a person to "dislike" (or in Facebook parlance, "un-like") a friend's post, probably for good reason."]
[Added: Lance Peterman suggests the ThnkUp app from Gina Trapani. I have not checked it out, but if it allows you to produce a comprehensive log of your Facebook posts, communications, and other activity, it may be useful for these types of discovery disputes. Another alternative may be the "download your information" feature which Facebook offers.]
Drug & Device law: Another Excellent Facebook E-Discovery Opinion
Law.com No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."