An opposing party’s, or potential opposing party’s social media profiles can be a trove of information for litigants and their counsel. However gaining access through the discovery process, and outside it, can open the litigant and counsel to legal and ethical issues. As a general rule, attorneys can ethically view the public portions of a person’s social media profile. When that profile is protected by privacy settings, courts and ethics boards have weighed in on what is permitted and what is not.
The first, and most straightforward rule falls under Pennsylvania Rule of Professional Conduct 4.2, which bars communication with a party represented by counsel. The Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility has concluded that “accessing the public portion of a represented party’s social media site does not involve an improper contact with the represented party because the page is publicly accessible under Rule 4.2. However, a request to access the represented party’s private page is a prohibited communication under Rule 4.2.”
As to unrepresented persons, the committee concluded that “a lawyer may not use deception to gain access to an unrepresented person’s social networking site. A lawyer may ethically request access to the site, however, by using the lawyer’s real name and by stating the lawyer’s purpose for the request. Omitting the purpose would imply that the lawyer is disinterested, contrary to Rule 4.3(a)”, of the Rules of Professional Conduct.”
The committee stated its position that a lawyer may use information obtained from a social networking website in a legal dispute, so long as the information was obtained ethically. The committee noted that, a competent lawyer has the duty to understand how social media works and how it may be used in a dispute because a client’s postings on social media may potentially be used against the client’s interests. In addition, there may be a trove of information about the user that may be discoverable in a legal dispute.
Pennsylvania Courts have permitted information from social media sites to be used in litigation, and have granted motions to compel discovery of information on private social networking websites when the public profile shows relevant evidence may be found.
For example, in McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Com. Pl. Jefferson Co. 2010) the court granted a motion to compel discovery of the private portions of a litigant’s Facebook profile after the opposing party produced evidence that the litigant may have misrepresented the extent of his injuries. In the McMillen case the plaintiff claimed substantial injuries including possible permanent impairment, loss and impairment of general health, strength and vitality and an ongoing inability to enjoy certain pleasures in life. Upon review of the publicly accessible portion of the plaintiff’s Facebook profile, the defendant discovered the plaintiff’s comments about a fishing trip and his attendance, as a spectator, at an auto race in Florida. Thereafter, the defendant sought to compel the production of the plaintiff’s user name and password to gain access to the private portions of the plaintiff’s profile under the assumption that more relevant information might be contained within.
Because the public profile indicated that relevant information might be contained in the private portion showing that the plaintiff’s injuries were exaggerated, and because no privilege exists between mere “Friends” (and even if it did, any privilege was waived once the information was shared with others), the court directed the plaintiff to provide the defendant’s counsel with the login and password information on a read-only basis.
Conversely, in Trail v. Lesko, 2012 WL 2864004 (Pa. Com. Pl. Allegheny Co. 2012), Judge R. Stanton Wettick, Jr. denied a defendant’s access to a plaintiff’s social media accounts, concluding that granting access to the plaintiff’s Facebook account would have been needlessly intrusive under Pa. Rule of Civil Procedure 4011(b), which requires the party seeking intrusive discovery that the information sought would provide relevant evidence not otherwise available.
Judge Linebaugh in York County noted that Judge Wettick could have based his ruling on Rule of Civil Procedure 4003.1 on the issue of relevance rather than the intrusiveness analysis, since he ultimately ruled the photographs sought on social media to be irrelevant. Hunter v. PRRC, Inc., 2013 WL 9917500 (Pa. Com. Pl. York Co. 2013). In the Hunter case, the court found the photographs sought on social media to be irrelevant under Rule 4003.1 and that no intrusiveness analysis was needed under Rule 4011. Judge Linebaugh instituted the following method for determining social media discovery requests:
Where discovery has been served requesting private information contained in an account held by an party on a social media platform that the party has specifically elected to make private pursuant to and in accordance with the commonly utilized privacy controls offered by the social media site, an objection lodged by that party to the discovery will be sustained unless the party serving the discovery makes a threshold showing that otherwise available information leads to the reasonable probability that relevant information is contained within the private portions of the account. The hypothetical possibility that relevant or discoverable information may exist in an account held privately is not sufficient to meet this showing. Actual facts must be shown and, for example, can consist of public postings on the party’s Facebook page establishing that there are relevant private posts or information produced in discovery that establishes that there are relevant private posts. The Court will permit the discovery only where the public or otherwise available information establishes a reasonable probability that relevant information will be found on the private account. The Court does not use the language of “reasonably calculated to lead to the discovery of admissible information” because the party requesting discovery cannot know what is contained in the private pages and therefore cannot reasonably calculate that information found there will lead to relevant evidence. Otherwise, the result would be a fishing expedition.
However, if the opposing party can establish that the discovery would cause unreasonable annoyance, embarrassment, oppression, burden or expense, and therefore be prohibited by Rule 4011 or require limitation pursuant to Rule 4012, then the discovery will not be permitted or will be limited by an appropriate protective order. Depending on the facts in each specific case this showing may be very simple or more difficult. While there is no presumption that intrusion into a private account amounts to unreasonable embarrassment, etc., electing to make a social media account private is far different from publicly posting on the internet as it involves the active step of actually rendering the page private. Under the objectively reasonable expectation that information made private will not been seen by any person other than a select group of persons, a user may post personal, sensitive, embarrassing, or secret information, and their friends, in reliance on the privacy settings, may do the same. Averments as to the sensitive or embarrassing nature of posts by both the party served and that person’s friends may be sufficient to require prohibiting discovery entirely or limiting discovery with a protective order. However, it is possible that this showing could not be made, perhaps in a circumstance where the party served previously had a public page and only changed the settings to private once served with discovery or where the social media page is used for purely professional purposes.
The upshot of these rulings is that discovery should be reasonably calculated, and should not resemble the proverbial “fishing expedition.” But counsel’s duty to zealously represent their clients means that they should be aware of proper methods of discovering relevant information on social media in pursuing their clients’ claims and defenses. Clients should be made aware that their social media postings may be subject to discovery.