In a recent article from The Villanova Law Review, Daniel E. Cummins, Esq., explains how there isn't an established precedent for how trial courts respond when litigants in civil litigation matters request access to someone's private social media profile.
Cummins notes that counsels in cases are taking advantage of people's social media presence by attempting to find evidence on their social media sites. In the article, Cummins explains what typically happens when a request to use something found on someone's Facebook page is made:
The proponent of Facebook discovery, usually the defense in the personal injury context, will typically claim that such discovery should be allowed as such social media profiles were voluntarily made, with the full knowledge that they may not necessarily be kept private. Moreover, the defense will usually argue that allowing such discovery would further the overriding goal of civil trials of searching for the truth of the claims and defenses presented.
The problem, Cummins notes, is that there is no set "appellate guidance" in these situations. The article lists several instances where a plaintiff or defendant requested access to someone's private Facebook page. Some requests were denied, such as this case in Philadelphia County:
Martin v. Allstate Fire and Casualty Insurance Co.51: In a one-sentence order, the court denied a motion to compel access to the plaintiff’s private Facebook pages because the defendant did not first show that the plaintiff’s deposition testimony and/or public pages of the plaintiff’s Facebook pages revealed evidence that information relevant to the plaintiff’s claims of injury and disability would be discovered on the private pages.
Some requests were granted, such as this case in Montgomery County:
Gallagher v. Urbanovich39: The court granted the plaintiff’s motion to compel the defendant to produce his username and password for his Facebook page. The court’s page-long order does not provide the background of the case, nor does it explain why such discovery was pursued by the plaintiff. While the court did grant the plaintiff access to the defendant’s Facebook page and ordered the defendant not to delete any information from the Facebook profile, the defendant was granted permission to change his login name and password after seven days following his compliance with the court’s order.
Cummins concludes the article by saying as more of these instances arise in the courtroom, he hopes the issue is addressed more concisely by higher courts.
Daniel Cummins is a graduate of Villanova Law and is currently an insurance defense civil litigator and partner with the Scranton, Pennsylvania law firm of Foley, Comerford & Cummins. If you're adept in interpreting legal language, read his full article here.