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Monday, November 28, 2011

Social networks not private in court

Social networks not private in court
Judge rails against notions of secrecy
Monday, November 28, 2011
Even without appellate case law in Pennsylvania to provide guidance on the discoverability of information on Facebook, the standard is becoming clear: Post at your own risk.

Three courts in this state have now decided that, if a party in a civil case posts information on his Facebook page, and that information appears to contradict statements in discovery or testimony, then the party's Facebook page falls within the scope of discovery.

In the most recent case, Largent v. Reed, a Franklin County judge ordered plaintiff Jennifer Largent to turn over her Facebook username and password to defendant Jessica Rosko, who allegedly caused an auto accident that left plaintiffs Jennifer and Keith Largent with "serious and permanent physical and mental injuries."

The decision came in Common Pleas Court Judge Richard J. Walsh's 14-page opinion, the beginning of which reads like a debriefing on the world's most popular website. According to Judge Walsh, Ms. Largent's Facebook page brought up questions about the extent of her injuries.

According to the opinion, the Facebook page reveals Ms. Largent posted about going to the gym, despite testifying that she needed to walk with a cane. Pictures on the website show Ms. Largent "enjoying life with her family." Judge Walsh pointed to these examples from the "public" profile that helped satisfy the slight relevancy standard the defense needed to probe the rest of her page. The plaintiffs filed negligence and loss of consortium claims.
Judge Walsh said there can be "little expectation of privacy" on a social networking site.

He said no court has ever recognized a "general privacy privilege" for Facebook information, "and neither will we." 

The opinion, which also warns readers of the "dark side" of social media, opens with Facebook's long-standing motto -- "Facebook helps you connect and share with the people in your life" -- and goes on to quote the site's policy on responding to legal requests, preventing harm and sharing user's information.

"Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets," Judge Walsh said.
Judge Walsh said making a Facebook page "private" does not shield it from discovery because even private posts are shared with other people.

Leonard Deutchman, who writes a cyber law column for the Law Weekly, said the decision is more narrow than some of the leading federal case law dealing with Facebook, because the defendant in this case is seeking information directly from the plaintiff.

Ben Present: 215-557-2315 or bpresent@alm.com. To read more articles like this, visit www.thelegalintelligencer.com.

First published on November 28, 2011 at 12:00 am

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