Social-Media Evidence in Pennsylvania Trial Courts

Many people mistakenly believe that their “private” Facebook or Myspace entries are truly confidential. Some are finding out the hard way that when they are later involved in court cases, the other side may be able to access those pages in the search for relevant evidence.

Some almost treat their social-media pages like alter egos, continually spilling their thoughts and creating virtual timelines of their lives, including pictures of themselves involved in activities.

Naturally, the actions of a plaintiff or defendant will often be of interest to the other party in a lawsuit. For example, in a car accident case a plaintiff may claim to suffer limited mobility and depression from injuries received because of the negligence of the other driver. That defendant would want to have access to pictures on plaintiff’s social-media sites that might impeach the plaintiff by showing him involved in strenuous activities or smiling and laughing.

This type of potentially damaging Internet evidence is becoming important in personal injury, workers’ compensation, disability, insurance, family law and other types of legal claims.

Pennsylvania trial courts, like those in other states, are still struggling to fit social-media evidence into its pre-existing evidentiary rules. For example, usually a party can discover information from the other party if relevant to the case at hand or likely to lead to other potentially relevant evidence.

Pennsylvania’s appeals courts have not yet decided this issue to guide the trial courts, and the trial courts are deciding on a case-by-case basis whether to order the material released.

The legal issues are fairly complex and include whether only “public” parts of the sites are available or “private” also; whether old, deleted material is discoverable or only current pages; whether the judge should review the pages privately in chambers in making his or her decision; and whether the pages’ owner should be able to release to the other party those pages it deems relevant in response to a formal discovery request, or whether the requesting party’s attorney should get a password to look around directly.

In the leading Pennsylvania trial court decision of McMillan v. Hummingbird Speedway Inc., the defendant’s lawyer was given the car-accident victim’s Facebook user name and password, and the plaintiff was also ordered not to delete anything pending the defendant’s review of the pages.

Other Pennsylvania cases have denied similar social-media discovery requests, however. The courts seem to decide the question whether the information would lead to relevant evidence on a case-by-case basis. Stay tuned for the continuing evolution of this interesting legal question.

Source: “The Big Reveal of ‘Private’ Social Media Data,” Claims Magazine, Feb. 2012