With the ubiquity of Internet social media (Facebook,
MySpace, Twitter, Google+), resourceful attorneys have sought access to social
media accounts in a variety of contexts – most commonly personal-injury claims,
employment disputes and divorces. To date, Pennsylvania
courts have been inconsistent in their approach to requests for social media
access.
In July 2012, Judge Wettig of
Allegheny County (Pittsburgh) a leading jurist on discovery matters, issued a reasoned
ruling regarding when Facebook postings are discoverable. In sum, it all comes
down to a question of whether the postings sought are relevant to a point of
dispute in the litigation.
For example, in a case in which personal-injury victim
was alleging emotional distress arising from the stigma of bearing ugly leg
scars suffered in an accident, discovery of photographs showing the victim
wearing shorts and displaying his scars was permitted. On the other hand, in a
car accident case involving alcohol, discovery of Facebook posts showing the
defendant drinking just prior to the accident was not permitted when the
defendant admitted to drinking but was defending the action based only on the
severity of plaintiff's alleged injuries. In most cases, the court required
both a showing that the requested social media information was relevant to a
disputed issue in the case and also that there was a reasonable basis to
believe that the requested type of information was posted through the social
media.
The Pennsylvania Supreme
Court has not ruled upon this issue so the law on this issue remains unsettled. Judge Wettig's analysis and suggested approach in Trail v. Lesko makes a
great deal of sense.
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