Friday, October 1, 2010

The New Discovery Battlefield: Social Networking Sites

There's a new discovery battlefield developing across the Pennsylvania legal landscape and the defense has taken the first hill.

The case of McMillen v. Hummingbird Speedway, Inc., PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), involving a Plaintiff who filed suit to recover damages for personal injuries allegedly caused when a Defendant rear-ended the Plaintiff’s vehicle during a cool down lap following a 2007 stock car race, President Judge Foradora held that where a person’s social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

During discovery, Defendant Hummingbird Speedway, Inc., in its Interrogatories inquired if the Plaintiff belonged to any social networking computer sites. The Defendant also requested the name of the site, the Plaintiff’s user name, login name, and password.

In this case, the Plaintiff belonged to Facebook and Myspace but maintained that his user name and login name information were confidential and should not have to be provided.

In viewing the public portion of the Plaintiff’s Facebook page, the Defendant noted comments evidencing that the Plaintiff had gone on a fishing trip and had attended the Daytona 500 race in Florida.

When the Plaintiff refused to fully respond to the written discovery requests, the Defendant filed a Motion to Compel the discovery desired.

The trial court noted that a party may obtain discovery regarding any information that is relevant and not privileged. The Plaintiffs requested the Court to find the communications shared among one’s private friends on a social networking site to be confidential and, therefore, protect it from disclosure. President Judge Foradora noted that no binding or persuasive authority was cited by the Plaintiff.

Judge Foradora noted that evidentiary privileges are not favored under Pennsylvania law and should be narrowly construed.

The Court found that the Plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge stated that these communication websites expressly noted the possibility of disclosure.

Accordingly, the Court found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the Plaintiff’s sites may be relevant in proving the truth or falsity of the Plaintiff’s alleged injuries, the Court found that the overriding goal the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

As such, Judge Foradora ordered the Plaintiff to produce his Facebook and Myspace user names and passwords. The Plaintiff was further ordered not to delete or alter any of the information on the accounts.

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the PICS number noted above.

Source: Pennsylvania Law Weekly Case Digests, September 21, 2010.

I plan to expand on this topic in my next article, which is set to appear in the Pennsylvania Law Weekly near the end of October.

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