In light of the constantly evolving use of the internet, an emerging hot legal issue is whether a party’s postings, comments or other on-line communications are discoverable in litigation. Discovery of electronic mail has already been addressed in the past few years by numerous courts. However, courts are just beginning to address the discovery of other on-line communications and postings. There are few decisions to date on this issue. Obviously, if a party “publically” posts something on-line, such as on his or her Facebook page, so that anyone may see it, there is no arguable privacy interest and anyone may view it and utilize it. However, does a party have any privacy interest or other legitimate interest in protecting his or her “private” on-line postings? For instance, a person with a Facebook page may mark certain postings as “private” so that only authorized “friends” may view them. Does marking them as “private” truly make them private, and non-discoverable?

As least one court in Pennsylvania has answered that question as “no.” The Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (C.C.P. Jefferson 2010) granted the defendant’s motion to compel the plaintiff to provide his user names, log in information, and other information for his Facebook/MySpace accounts/pages. The plaintiff objected claiming a privacy interest or privilege in his “private” postings. The Court rejected this argument finding that there is no privilege for social networking postings and that such information is discoverable as it may contain information about the plaintiff’s physical capabilities, limitations and other issues relevant to the case.

Attorneys are beginning to request such information on a consistent basis during discovery, and not surprisingly, counsel for the opposing parties are objecting. This is resulting in more litigation on this issue. Thomas, Thomas & Hafer, LLP presently has several motions to compel Plaintiff to produce this information pending, in the hopes that more courts will provide clarity on this issue.  Pushing the discoverability of this information is important as the type of information one is capable of gleaning from social networking sites can be critical in exposing false, fraudulent or exaggerated claims. As this area of the law is quickly developing, one should be aware of the current cases, if any, in relevant jurisdictions.

Any questions regarding this issue may be directed to Stephen E. Geduldig, Esquire, at 717-237-7119 or sgeduldig@tthlaw.com or Stephanie Hersperger, Esquire, at 717-255-7239 or shersperger@tthlaw.com.