Pennsylvania Court Holds Non-Public Posts to Social Media Websites Discoverable

Labor and Employment Alert | June 23, 2011
By: Nancy Conrad and George C. Morrison

The Court of Common Pleas of Northumberland County, Pennsylvania, recently issued a decision in Zimmerman v. Weis Markets, Inc., Civil Action No. 2009-1535, a case where the Court held that a person who voluntarily posts pictures and information to Facebook and MySpace has no reasonable expectation of privacy in the posts as to prevent production of the information in response to discovery requests.  While Zimmerman addresses discovery of social media in a personal injury context, the court’s rationale equally applies to other areas of the law, including labor and employment cases.     

Facts of the case

Zimmerman filed suit against his former employer, Weis Markets, Inc., for injuries to his leg resulting from an accident.  He sought damages for the injuries, including lost wages, loss of future earning capacity, pain and suffering, scarring, and embarrassment.  He claimed that “his health in general has been seriously and permanently impaired and compromised” and, that “he has sustained a permanent diminution in the ability to enjoy life’s pleasures.”

Weis reviewed the public portions of Zimmerman’s Facebook and MySpace pages.  The pages revealed that Zimmerman’s interests included “ridin” and “bike stunts.” Recent photographs of Zimmerman depicted him with a black eye and a motorcycle before and after the accident.  Contrary to Mr. Zimmerman’s claims that he never wore shorts due to scarring on his leg, photos showed Zimmerman wearing shorts with a clearly visible scar.

Weis sought discovery of the non-public portions of Zimmerman’s Facebook and MySpace accounts, i.e., those portions of the accounts that could only be viewed by Mr. Zimmerman’s “friends.”  Zimmerman refused to produce any information stored on the non-public portions of the accounts, arguing that his privacy interests outweighed the need to obtain the material.  Weis sought to compel production of the information. 

Court’s Analysis

The Court focused on two primary legal concepts: (1) privilege; and, (2) the right to privacy. Regarding privilege, the Court held that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, and that liberal discovery is generally allowable.” The Court further provided that:

To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

Regarding the right to privacy, the Court emphasized that the Fourth Amendment of the United States Constitution protects people, not places.  In addition, the Court recognized that Facebook and MySpace do not guarantee privacy.  Indeed, Facebook’s policy provides that users post any content on the site at their own risk and informs users that this information may become publicly available.  Since Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace accounts to share with other users, the Court held he cannot hold a reasonable expectation of privacy to prevent Weis from accessing the information.  As a result, the Court granted Weis access to the non-public portions of the accounts. 

The Court warned, however, that discovery requests must establish that the publicly accessible portions of the sites contain information that suggest further relevant postings are likely to be found by access to the non-public portions.     

Conclusion

When embroiled in litigation, it is imperative that organizations recognize the critical role that social media can play in defending against claims.  Crucial information may be stored on multiple web-sites and in both public and non-public forms.  The discoverability of this information presents issues that are unsettled within state and federal courts.  We will continue to update our current and prospective clients of further developments in this rapidly expanding area of law.  

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.