Judge Wettick Issues Opinion on the Discoverability of Private Facebook Content

In a recent opinion, Allegheny County Court of Common Pleas Judge Wettick provided a detailed analysis of the discoverability of private Facebook content, ultimately denying both parties' respective motions to discover the information. Trail v. Lesko, No. GD-10-017249 (C.P. Alleg. Co. July 3, 2012 Wettick, J). Judge Wettick decides all of the discovery disputes in the General Docket cases in Allegheny County that are not on the trial list.

In Trail, the plaintiffs sued the defendant for injuries sustained in connection with a car accident. The accident occurred after the defendant left the "Gun Bash" event at the Pittsburgh Elks Lodge No. 11. The defendant admitted that he was driving the car, was intoxicated, crossed the center line and injured the plaintiffs. Thus, the only issue remaining in the case was damages.

Nevertheless, the plaintiffs sought access to the defendant's Facebook account, and the defendant sought access to plaintiff Michael Trail's Facebook account. The plaintiffs based their motion to compel on information obtained from the public portion of defendant's Facebook profile. Specifically, the plaintiffs alleged: (1) that defendant removed, deleted and/or altered portions of his Facebook profile after receiving a discovery request seeking information contained in the profile; (2) on the day of the event, the defendant posted "status updates" discussing his attendance at the event; and (3) that the defendant posted a "status update" following the accident thanking his friends for their support.

The defendant based his motion to compel on plaintiff Michael Trail's allegation that he suffered great physical pain, may be "disabled or limited in his normal activities," and that "his general health, strength and vitality have been seriously impaired and this impairment is possibly permanent." To support his motion, the defendant attached photographs that he obtained from the public portion of Trail's Facebook account. Those pictures showed Trail at a bar and drinking at a party.

Judge Wettick reviewed opinions from courts in Pennsylvania and outside the jurisdiction that have ruled on the discoverability of Facebook accounts. Judge Wettick found "a consistent train of reasoning" among the courts in Pennsylvania that recognize "the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the non-public portions of the profile."

Similar to the courts in Pennsylvania, Judge Wettick found that courts outside of Pennsylvania "disfavor 'fishing expeditions,' and tend to require some factual predicate suggesting the existence of relevant information prior to ordering access to the sought-after information." One difference Judge Wettick observed, however, is that many courts outside of Pennsylvania attempt to establish a "middle ground" and will typically grant limited access to the account information, whereas Pennsylvania courts frequently use an all-or-nothing approach, granting or denying the request.

In determining whether to grant the parties' motions to compel, Judge Wettick based his decision on Pennsylvania Rule of Civil Procedure 4011(b), which prohibits discovery that would cause "unreasonable annoyance, embarrassment [or] oppression … to any person or party." Judge Wettick stated that granting a party access to an individual's Facebook account is intrusion because the party given access will likely come across information that is irrelevant to the litigation and which may be embarrassing. However, on a scale of one (1) to ten (10), with one (1) being the lowest, Judge Wettick stated the intrusion caused by most Facebook discovery is likely at a level two (2).

To determine whether the intrusion is unreasonable, and thus in violation of Pa.R.Civ.P. 4011(b), Judge Wettick stated the court should balance the level of intrusion with the "potential value of the discovery" to the requesting party. In the case at issue, Judge Wettick determined that the intrusions the discovery would cause "were not offset by any showing that the discovery would assist the requesting party in presenting its case."

Judge Wettick denied the plaintiffs' request because the information sought was not relevant to the issue of damages, which was the only remaining issue in the case. Judge Wettick denied the defendant's request because it sought irrelevant information. Specifically, since plaintiff Michael Trail never claimed he was bedridden or unable to leave his home, the photographs the defendant was seeking would not have been inconsistent with the alleged injuries.

This case is important because it provides additional guidance for Pennsylvania courts when analyzing the discoverability of Facebook accounts. Courts will likely utilize the balancing test Judge Wettick articulated: the degree of intrusion under Pa.R.Civ.P. 4011(b), which is typically low given the public nature of social media, weighed against the threshold relevancy requirement.