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Rediscovering Facebook: The Role of Facebook in Pennsylvania's Courts

EDWARD E. KNAUSS, IV
Rediscovering Facebook: The Role of Facebook in Pennsylvania's Courts

Updated for 2021

College alumni remember when Facebook used to be exclusive for only those with a valid college e-mail address. Created in 2004, it was meant to connect college students like never before.

Back then, Facebook consisted of a single page with just the basics:

  • Profile picture
  • Gender
  • Birthdate
  • Friend list
  • Wall of posts
  • Status log
  • Photo album

Each college was its own network and Facebook advertised itself as a networking site. As college kids got to know their classmates and dorm mates, they added these new people to their friends list. Facebook then kept everyone informed with a newsfeed that provided constant status, picture, and profile updates.

With such a basic design, no one would have ever guessed that the social media site would one day change the entire world, including courtroom procedures and the law in many places.

Facebook Grows Beyond Its Simple Origins

Facebook proved to be a successful venture into the relatively new world of social media. It continued to grow, opening its doors to community colleges, then to corporations, and eventually to anyone with an e-mail address. It became so popular that “Facebook” became a verb. For example: “Why don’t you Facebook her to find out what she’s doing tonight?” or “Is he single? Facebook him and find out.”

When Facebook became an application or app on smartphones, users became even more “connected.” The Facebook app allows users to “check-in” to any place, allowing the phone’s GPS to locate these users and broadcast where they are to the world. The app also makes it simple to point your smartphone’s camera, take a picture, and share it instantly on your Facebook page.

Facebook has continuously upgraded its layout to accommodate so much information. It has basically become an open diary for anyone with the right privacy authorization to see — which can be an issue in certain legal contexts.

Evidence Discovery in the Social Media Age

Facebook has had its share of privacy problems. Because more and more people are willing to upload intimate and potentially embarrassing material onto the internet, Facebook responded by creating increasingly complicated and customized privacy settings. A user can become Facebook friends with their parents and carefully finagle the privacy settings so that Mom only sees pictures of them frantically chugging a cappuccino before an exam or posting statuses that celebrate academic achievements rather than those pictures of them chugging beer through a funnel and statuses that say they woke up in jail, for example.

Facebook’s popularity has turned it into a powerful discovery tool. Take, for example, the car accident case of Mary and Rob. Mary’s car was rear-ended by Rob in a violent crash. She now claims that she is so injured that she can no longer partake in life’s pleasures. Traditionally, Rob would send a private investigator to take pictures of Mary out and about to see if her claims could be disproved. Now, all Rob would have to do is access Mary’s Facebook page to find pictures of her exercising, running errands, and generally being unbothered by her injuries, and there goes both her claim and credibility.

The conflict arises when Rob tries to access Mary’s Facebook page and is blocked by her privacy settings. Only Mary’s Facebook friends are permitted to view her posted material. All Rob can see is her name and profile picture, which really doesn’t tell him anything. Rob files a motion in a Pennsylvania court to compel the discovery of Mary’s Facebook page. What would be the outcome?

Is There Any Privacy Online?

Since the dawn of the internet era, consumers have been repeatedly reminded to never give out their passwords. Understandably, people bristle when an opposing attorney demands their username and password to have unfettered access to something that they thought was private. Yet, it seems as though Pennsylvania discovery rules side with disclosure. Pa.R.C.P. 4003.1 allows a party to obtain discovery regarding any unprivileged matter as long as it is somehow relevant to litigation. In McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, an argument was made in the Jefferson County court that private Facebook material should be subject to a “social network site privilege” based upon the belief that the plaintiff’s postings were private communications between him and his friends.

The court shot this argument down by pointing out that the law disapproves of privileged information so there could be no such thing as a social network site privilege. In addition, Facebook’s own terms and privacy policies say that it cannot prevent friends from reposting information or Facebook operators from accessing that information, so it is unrealistic to expect Facebook postings to be privileged. The McMillen court ultimately ordered the plaintiff to give the defendant his Facebook username and password.

In other words, if it’s on the internet, then it is there for everyone to see – and it’s there forever.

What Posts Are Really Relevant?

One way to approach Facebook disclosure is to ask the court to conduct an in-camera review of the private Facebook page in question. In Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011), the court ordered the plaintiff to disclose his Facebook username and password then proceeded to review the plaintiff’s Facebook page in chambers. This review revealed that all of the relevant information the defendant needed had already been displayed on the public portion of the plaintiff’s page. The court concluded that the plaintiff knew his Facebook page best and could have produced the posts the defendant wanted without the court’s help.

On the other hand, the court in Zimmerman v. Weis, No. CV-09-1535 (Northumberland Cnty) determined that it would be an unfair burden on the court if it had to go through the plaintiff’s Facebook page to determine what is relevant and what is not. It ordered the plaintiff to provide his Facebook username and password to the defendant.

In Luzerne County, a court refused to compel a plaintiff to give defense counsel his username and password. The facts in Kalinowski v. Kirschenheiter and National Indemn. Co, No. 6779 of 2010, (Luzerne Cnty.) involved a plaintiff who was a bar owner with a Facebook page. When the defendant demanded access to the page, the plaintiff claimed that the defendant was only trying to embarrass him with pictures of the plaintiff in his best party attire. The court denied the defendant’s Motion to Compel without prejudice because the plaintiff’s public page did not reveal anything that impeached the plaintiff. The court did also order that the plaintiff refrain from deleting anything from his Facebook page to open the door for future social media discovery.

Facebook & Family Law

Another major area of concern when it comes to Facebook intersecting the law is family law, especially when considering divorces. When a parent is going through a divorce, they will usually want to retain child custody and snub their soon-to-be ex-spouse of parental rights. Family law courts hate taking parents away from their children, but they will if they have reason to believe that the parent is unfit for safely raising a child.

Facebook posts can be rife with examples of “less than ideal” parenting behavior, such as:

  • Tags that show a parent went to a bar late at night.
  • Videos that show the parent engaging in reckless behavior.
  • Posts from the parent that include complaints about parenting in general.

As mentioned, everything on the internet should be treated like it lasts forever, and family lawyers know as much. They can find old posts from many years ago and try to contort them into relevant evidence for a current case. If the judge is convinced that the posts are relevant, then the damage is done.

Of course, this method of misrepresenting posts is not unique to just family law, as it can be done in criminal and personal injury cases, too. It isn’t even unique to Facebook. Attorneys can dig up real “dirt” from Instagram, Twitter, Snapchat, and pretty much any other social media app out there. Users need to pay attention to what they’re doing on every app.

You Lost Your Job Because of a Facebook Post?

In recent years, the sociopolitical climate has become heated and divisive. Many people head to their Facebook walls to voice their complaints, rants, and conspiracy theories. While this is certainly within their legal permissions, it might not be the right move for someone who is looking for a job or has one they really like.

Employers have the right to disallow people to represent them and their business if they don’t agree with how they conduct themselves in the public eye. If you’re at-will employed, which most people are, then you can be let go if your boss doesn’t like what you’ve been posting on Facebook unless it is specifically discriminating against a protected class to which you belong. Depending on where you live, your political affiliation may or may not be a protected class.

Facebook: For Friends & Litigants

It seems as though the trend in Pennsylvania is to allow a party access to the opposing party’s Facebook page as long as something in the public profile suggests that relevant information may be contained in the private profile. Facebook postings may not only affect your relationship with your friends, family, and coworkers, but they may also affect the outcome of your case. Although the rules on Facebook discovery are not set in stone, what parents, teachers, and employers often advise still remains true: Be careful what you post on Facebook!

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