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Facebook and Discovery in Personal Injury Cases

February 1, 2012

As Facebook encroaches more and more into our daily lives, it was only a matter of time before judges would begin taking it into account when making legal decisions. As reported recently by The Legal Intelligencer, a local judge has just weighed-in with his opinion on the issue of whether or not to allow defendants access to plaintiff’s Facebook pages as part of discovery (the evidence-gathering stage in a lawsuit).

The decision came from Philadelphia Judge William J. Manfredi in a personal injury case in which he declared that an insurance company did not have the right to inspect a plaintiff’s Facebook profile, photos and personal messages. The plaintiff’s attorneys argued that the insurer had failed to produce any evidence that might suggest s/he had written anything relevant to the case on her page.

Judges have not been able to reach a consensus on the propriety and legality of probing Facebook profiles, and those in the state of Pennsylvania have ruled three times in favor of the defense and four times (in a row) in favor of the plaintiff.

In Martin v. Allstate Fire and Casualty Insurance Co., the plaintiff (Patricia Martin) was struck by a car while she was walking. She was awarded $15,000, and subsequently attempted to collect underinsured motorist coverage from Allstate. After she filed suit, the insurer asked for her Facebook password in an attempt to obtain any information about the accident that she may have posted as part of their discovery. Ben Present writes, “Allstate argued that ‘any harm in disclosing information exposed to friends’ was outweighed by the benefit of ‘honestly and correctly’ resolving the issue of damages Martin raised.”

Judge Douglas W. Herman of Franklin County displayed knowledge of Facebook and its nuanced differences between public and private information in a recent decision in which he wrote, “In essence, viewing relevant information on the public profile acts as a gateway to the private profile.” This case was similar to Patricia Martin’s case and her argument is similar to Herman’s.

The plaintiff’s attorney summarizes: “Simply put, the defendant is seeking access to perform an untargeted search of plaintiff’s private communications which are in no way relevant to the instant case…Such requests have never been authorized by the Pennsylvania courts and are forbidden by the Pennsylvania Rules of Civil Procedure.”

If Martin were forced to turn over her account information, she would have been forced to pay Facebook to turn over a summary of her activity on the social networking site, including information like her profile, locations (via IP address) of her Facebook log-ins, wall posts, photos and status updates.

Martin’s attorneys view this decision as an obvious one, and they claim it is only the beginning of a larger trend, stating, “[J]udges…are starting to understand the difference and distinction between what is public and what is private.” The personal injury attorney thinks the recent swing in the plaintiffs’ favor with regard to the security of Facebook accounts is not so much a change in opinion, but a growing awareness and widespread use of social networking sites with privacy settings.

It is worth emphasizing that this trend is by no means a secure, lasting one. Even as some judges become more closely acquainted with technology, there are some who are not. The safest way of keeping your Facebook information out of court records is to keep your legal matters off of your social media pages and be mindful of what you are posting. Steer clear of broadcasting any information that may pertain to the lawsuit and save that for offline conversations.

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