Tuesday, May 29, 2012

Social Media Evidence: If It's Relevant, It's Discoverable

I've been looking at a 2011 case out of a Pennsylvania court, Zimmerman v. Weis Markets, Inc., and think it raises a nice point about discovery of social media evidence.

The plaintiff in this case was an employee of a Weis subcontractor,  and sued for injuries he suffered while running a forklift at Weis.  Zimmerman sought damages for injuries he suffered as a result of the accident -- including lost wages, lost future earning capacity, pain and suffering, scarring, and embarrassment.

At deposition, plaintiff testified (among other things) that he no could no longer participate in certain activities, and his injuries affected his enjoyment of life.  Plaintiff also testified he never wore shorts because he was so embarrassed about the scar from his injury.

But after looking at the publicly accessible portions of Zimmerman's online profiles, Defendant wasn't so sure.  Zimmerman’s Facebook profile showed his interests included “ridin” and “bike stunts.”  His MySpace profile showed recent photos of Zimmerman with a black eye and a motorcycle before and after an accident.  Pictures also showed Zimmerman wearing shorts, with the scar from his accident clearly visible.

Not surprisingly, Defendant sought an order compelling disclosure and preservation of non-public portions of plaintiff’s Facebook and MySpace profiles.

Not surprisingly, Plaintiff resisted.  Plaintiff argued first that his privacy interests outweighed Defendant's need to obtain the discovery.  But court explained, privacy concerns are reduced where the beneficiary himself chose to disclose the information. 

Alternatively, plaintiff argued the court should conduct in camera review and decide what materials should be provided.  The court "flatly rejected" plaintiff’s request for in camera review “as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.”

The court ordered plaintiff to provide all user names, log-in names, and passwords for his MySpace and Facebook accounts, and ordered not to delete or alter existing information/posts.

A significant piece of the defendant’s argument and court’s rationale:  
“Based on what was observed on the publicly available portions of Plaintiff’s Facebook and MySpace profiles, Defendant believed there may be other relevant information as to Plaintiff’s damage claims on the non-public portions.”
I understand this certainly made the request reasonably calculated to lead to discovery of admissible evidence.  However, where a party claims significant damages for loss of enjoyment of life – and that party maintains a profile on a website devoted to sharing information about social lives – it shouldn’t matter what appears on the publicly viewable portion of an online profile.  Why would we reward a party for successfully concealing relevant evidence?

I think this is the better rationale from Zimmerman Court: 
“With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”
A party's right to discover non-public information should not hinge upon the publicly viewable portion of an online profile.  Bottom line:  If there’s relevant information on the non-public portion, it’s discoverable.