If you are currently involved in a lawsuit, or think you may ever be in one, you better check out your Facebook account now.
As social media expands, lawyers have increased online investigations researching accounts such as facebook, twitter and linked-in. This information, while meant to be harmless when posted, is changing the outcome of lawsuits.
Recently, I had a case where I was representing a defendant in a lawsuit whereby the plaintiff claimed she was permanently disabled. However, her Facebook images portrayed a very different story. In photos dated after the alleged injury, the plaintiff was seen partying, and engaging in physical activity, contrary to the prior assertions she had made under oath.
Her case was significantly weakened through her own voluntary postings. This situation is not unique. Anything you comment on or post online may be used against you later in court. This can be true even when the connection between the online posting and the litigation is not obvious.
Facebook has become one of the most valuable research tools of lawyers, often replacing old-style private investigations. It is an asset in finding where debtors live, where they were on certain dates, what assets they have, and whether someone has been hurt or not.
The answer thus far appears to be “Yes”, if it is relevant information posted publicly and, “would assist the requesting party in presenting its case”.
There is of course no binding Supreme Court decision on the matter yet, and to date, no Pennsylvania appellate court has addressed discovery requests for information contained within an individual’s Facebook profile.
However, on July 3, 2012, Judge R. Stanton Wettick, a Senior Judge in Allegheny County, Pennsylvania and renowned discovery expert issued a lengthy 22 page opinion on the issue. Basically, Judge Wettick will require your facebook information to be turned over to the other side if the other side needs the information to present their case, is unable to do so without it, and it is reasonable to believe based upon their public profile.
THE UNREASONABLE INTRUSION TEST
Pennsylvania Rule of Evidence 4011 prohibits discovery which causes “unreasonable”:
Lawyers trying to prohibit Facebook discovery have argued that requiring Facebook postings which were only meant for ‘friends’, can cause unreasonable embarrassment and should be protected. The worry is that the opposing party is likely to gain access to a great deal of information that has nothing to do with the litigation and therefore intrusive.
Judge Wettick agreed that the requests are intrusive, but also held that the intrusion is low considering the person voluntarily publicly posted the information.
As Wettick wrote:
“However, on a scale of 1 (the lowest) to 10 (the greatest), the intrusion from most Facebook discovery is probably at a level of 2. This is so because the party resisting the discovery has voluntarily made this information available, in most instances, to numerous other persons, none of whom has any legal obligation to keep the information confidential, and Rule 4011 bars only discovery that is unreasonably intrusive.”
Judge Wettick continued that all discovery is intrusive by its very nature. Therefore, discovery in lawsuits needs a balancing test between the level of intrusion, and the potential value of the discovery to the case.
Wettick defined exactly what a level 2 intrusion means:
“For a level 2 intrusion, the party seeking the discovery needs to show only that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.”
Be careful about what you post on Facebook. It can kill your lawsuit. Facebook information is discoverable. And it’s not just Facebook, it’s the internet (Facebook, linked-in, twitter, Instagram, online forums.)
The bottom line is to be smart what about you post online because if you are in a lawsuit, lawyers will find it and use it against you.