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Pennsylvania Judge Thoroughly Tackles Facebook Discovery

August 15, 2012

As the relationship between technology and the law both widens and deepens, we were bound to see more rulings on issues of social networking and privacy. We have written about the issues, especially Facebook, on several occasions. Adding to this list is Allegheny County Common Pleas Judge R. Stanton Wettick, Jr., who wrote an Opinion in which he denied both parties (plaintiff and defense) access to one another’s Facebook profiles and the photos, status updates, and messages. The case involved an automobile accident in which one party asserted the other was driving drunk and caused a collision that resulted in serious injuries.

What is noteworthy about this Opinion is that Judge Wettick basically writes a legal definition for Facebook that can be understood by those who have never used the site. His analysis of its features is both thorough and nuanced. Many legal analysts over the past few years have lamented the inability of judges (typically more senior than those in the millennial generation originally targeted by Facebook’s marketing) to properly grasp how Facebook works in theory and in practice. Judge Wettick’s summation really hits the nail on the head. It contains citations of articles from legal journals, newspapers, and even other websites and is peppered with dozens of footnotes.

He writes: “Once a profile is established, the user is encouraged to connect with other Facebook users — so-called “Friends” — with whom they exchange limited access to their respective profile pages and the ability to post pictures, comments, and other content therein.” He gets more specific to the law about a page later: “The sheer volume of potentially relevant information is staggering. In the aggregate, users collectively update their ‘statuses’…more than 60 million times each day. Individual users create on average 90 pieces of content every month…[and] collectively upload 300 million photos to the site each day.”

Judge Wettick’s sensitivity to Facebook’s privacy settings is the real indication he knows what he’s talking about. He explains the intricacies of who is allowed access to what content expertly, breaking down what is available publicly versus privately versus what is available to various groups of Friends and other lists.

What also makes this Opinion remarkable is the fact that Judge Wettick goes to great lengths to outline and discuss the precedents to this sort of decision in the state of Pennsylvania, listing and analyzing nine separate cases in which Facebook privacy issues arose (in addition to at least half a dozen such cases in other jurisdictions).

The issue in this case is that the plaintiff asserts the defendant deleted potentially relevant posts from his Facebook page, in which case Facebook alone possesses the original content.

Judge Wettick’s summation reads: “I base my rulings on Pa.R.C.P. No 4011(b) which bars discovery that would cause ‘unreasonable annoyance, embarrassment, oppression…’ […] A Court order which gives an opposing party access to Facebook postings that were intended to be available only to persons designated as ‘Friends’ is intrusive because the opposing party is likely to gain access to a great deal of information that has nothing to do with the litigation and may cause embarrassment if viewed by persons who are not ‘Friends.’ Because such discovery is intrusive, it is protected by Rule 4011 where the party seeking discovery has not shown a sufficient likelihood that such discovery will provide relevant evidence, not otherwise available, that will support the case of the party seeking discovery.”

Even though the trend in recent months has been toward judges not allowing others access to one’s Facebook profile, each of these cases is totally singular and none of them are predictive of the future. When in doubt, you’re always best off not posting sensitive information anywhere on social media sites.

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