Tuesday, November 22, 2011

Pennsylvania Still Blazing the Facebook eDiscovery Trail

Think Before You Click:
Strategies for Managing
Social Media in the Workplace
Pennsylvania just keeps cranking out new social media discovery cases. The latest is Largent v. Reed, No. 2009-1823 (Franklin Cty. Nov. 7, 2011). Judge Walsh issued a 14-page opinion with some nice analysis of emerging e-discovery law.

Largent is a vehicle collision case in which the plaintiff claims serious injuries requiring her to use a cane. She also claims she suffers from mental pain and depression. Defense counsel found out that her Facebook page was once open to the public and showed photos of the plaintiff having fun with her family and a status update about going to the gym.

Now, the defendant has filed a motion to compel the plaintiff to hand over the keys to her Facebook page (username and password). The Court first addressed the plaintiff's claim of "privilege and privacy":
[T]here can be little privacy on a social networking website. Facebook’s foremost purpose is to "help you connect and share with the people in your life." That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.
Strike one!

The plaintiff next claimed protection under the Stored Communications Act (SCA). However, the SCA only applies to ISPs, including electronic communications services (ECS) and remote computing services (RCS). Notably, it does not apply to individual users. Strike two!

Finally, the plaintiff challenged the breadth of the discovery request. The Court basically points out that she put her health at issue in this case and has waived her privacy interest. The Court also noted that the only two Pennsylvania cases to address this issue compelled discovery (while there are also two that did not compel discovery, neither order included an opinion). Strike three! You're Out!

The Court granted the motion to compel and ordered:
[T]hat Plaintiff Jennifer Largent shall turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account. After 35 days from the date of this Order, Plaintiff may change her Facebook login password to prevent further access by Defense counsel.
Another Pennsylvania social networking discovery case in the books. We're still waiting for that first appellate opinion though...

For more coverage of social media discovery issues, check out a book I co-authored, Think Before You Click: Strategies for Managing Social Media in the Workplace. (update: another co-author, Eric Meyer, has more on Largent over at The Employer Handbook).

HT: Copy of the Opinion and Order provided by Drug and Device Law.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.