A new HELLA GOOD social-media-discovery ruling for employers

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Last week, I reported that a Pennsylvania state court had ruled that a plaintiff did not have to provide access to her Facebook page during discovery by accepting a “friend” request from defense counsel.¬†That same week, another Pennsylvania state court was asked to resolve whether a plaintiff’s “privacy rights” would trump a defendant’s request to access the plaintiff’s Facebook and MySpace accounts to discover facts relating to the plaintiff’s claim for damages.

Pennsylvania has become a hotbed of social-media-discovery litigation. Who knew?

I break down the latest decision, which I predict will be a “go-to” for defendants and courts alike, after the jump.

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Plaintiff’s complaint doesn’t jibe with some of his online postings

The case is Zimmerman v. Weis Markets, Inc.. Gina Passarella of The Legal Intelligencer, once again, broke the story. She summarizes the facts:


Rane Zimmerman was suing his former employer, Weis Markets, after he injured his leg in a forklift accident while working. He sued the store for lost wages, lost future earning capacity, pain and suffering, scarring and embarrassment, according to Saylor’s opinion.

At his deposition, Zimmerman said he never wore shorts because he was embarrassed by the scar on his leg from the accident. But in his public MySpace pictures, he was shown wearing shorts with his scar visible. He also discussed on the sites riding motorcycles and posted pictures of himself near his motorcycle.

Weis then filed a motion to compel discovery of the private portions of Zimmerman’s Facebook and MySpace pages, arguing there may be other relevant information as to Zimmerman’s damages claims on the private portions of those pages. The company sought the disclosure of Zimmerman’s passwords, user names and login names to Weis’ counsel.

Zimmerman argued that his privacy interests outweighed the need to obtain discoverable material. Weis Markets countered that discovery rights trump privacy rights.

In a very well-reasoned decision, the court agreed with Weis Markets, basing its decision on three important tenets:

1. A litigant has no “privacy rights” in non-public sections of social websites.

Relying upon Romano v. Steelcase, a New York Supreme Court decision with similar facts to those in Zimmerman, the court found that a party cannot subvert discovery through social media privacy settings:


To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

The court further recognized that a social-media site is fueled by engagement and the sharing of information.

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For these reasons, the Zimmerman Court found that social-media privacy settings carry little, if any, weight in a discovery dispute.

2. The “pursuit of truth as to alleged claims is a paramount ideal.”

Here, the court underscored that discovery favors pre-trial disclosure and a party cannot hide relevant information behind “self-regulated privacy settings.” Indeed, once a party has laid a foundation, based on public portions of a social-media account, that private portions may contain relevant information, then access to the private portions of a social-media account is “both material and necessary.”

3. Courts generally allow liberal discovery.

Pennsylvania Rules of Civil Procedure, as do those in most other states, provide that discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the case being tried.

Zimmerman, no doubt, placed his health at issue. His public social-media postings belied his claims that he had sustained serious injury. The court, therefore, easily concluded that there was a reasonable likelihood that his private postings could lead to the discovery of admissible evidence. Accordingly, the court ordered the plaintiff to turn over his Facebook and MySpace logins and passwords to the defendant.

In all, a well reasoned decision, which helps employers.

The court here clearly “got it.” By definition, a social-networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge.

Let’s put aside, for a second, the substance of most of the posts that social-media users tend to make (e.g., “what a great day;” “Tommy is a jerk;” “Yummy. Pizza for lunch.”). Real private, huh? How many of our social-media “friends” are actually close friends in whom we would confide? Very few. Many “friends” are people with whom we have lost touch (e.g., old high-school classmates). Others may even be business colleagues with whom we do not socialize outside of work. Does a social-media user really have some great expectation of privacy in content shared with these “friends”?

Not really.

Therefore, I can see why the court easily brushed aside the “privacy” moniker. Although, if I were wearing the black robe, I would be reluctant to force a party to turn over user names and passwords. A good alternative — at least as to Facebook discovery — would have been to require that the plaintiff utilize Facebook’s “Download Your Information” function, which allows a user to create an electronic copy of her profile information (e.g., contact information, interests, groups), wall posts and content that she and her friends have posted to her profile, photos and videos, friend list, notes, events, private messages, comments, and other related content.

In all, the opportunity for unfettered social-media access, provided that a defendant can lay a basic foundation, makes this decision a great one for employers involving claims by employees for emotional distress or other related damages. 

And because it is so well-reasoned, it would not surprise me if courts also quote liberally from Zimmerman.

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