Monday, February 4, 2013

Be careful what you put on Facebook

Increased privacy settings may provide limited protections to disclosure of your social media posts.
  
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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