No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says

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 or her 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 Sunday driver’s debriefing on the world’s most popular website. According to Walsh, Jennifer Largent’s Facebook page brought up questions about the extent of her injuries.

According to the opinion, the page reveals Jennifer Largent posted about going to the gym, despite testifying that she needed to walk with a cane. Pictures on the website show Largent “enjoying life with her family.” 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.

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,” Walsh said.

Walsh also addressed whether the 1986 Stored Communications Act prohibited disclosure of Largent’s Facebook information, a novel issue in Pennsylvania and a question he said only one other court in the country had discussed. The SCA did not apply to Largent, Walsh said, because Rosko was seeking information directly from the plaintiff rather than serving subpoenas on Facebook, itself. Walsh said the SCA only covered internet service providers, though he acknowledged the “terms are somewhat confusing because they reflect the state of computing technology as it existed in 1986.”

Largent joins Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc. as defense victories in a sprouting body of case law dealing with Facebook. The apparently lone plaintiff win on the subject in Pennsylvania — Piccolo v. Paterson — came after the plaintiffs attorney successfully argued his case was distinguishable from McMillen because there were no allegations his client posted one thing and said another.

The plaintiff cited Piccolo and a Philadelphia case, Kennedy v. Norfolk S. Corp., which was not available at press time.

Walsh said making a Facebook page “private” does not shield it from discovery because even private posts are shared with other people.

Jennifer Largent also said that disclosure of her account information would cause unreasonable embarrassment and annoyance, but Walsh rejected the argument.

Largent compared the discovery request to the court allowing for discovery of all of her private photo albums and e-mails.

“But those analogies are mistaken in their characterization of material on Facebook,” Walsh said. “Photographs posted on Facebook are not private, and Facebook postings are not the same as personal mail.”

He said Largent did not specifically identify anything to indicate such discovery would cause unreasonable embarrassment and added that a probe of her Facebook account was “one of the least burdensome ways to conduct discovery.”

Leonard Deutchman, who writes a cyber law column for the Pennsylvania 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.

“Largent has far less to protect herself with from fending off discovery requests than would Facebook,” Deutchman said.

According to the opinion, the case stems from a chain-reaction accident in which Rosko allegedly collided with a minivan, driven by additional defendant Sagrario Pena, that then crashed into a motorcycle being ridden by both plaintiffs.

Rosko’s attorney, Donald L. Carmelite of Marshall Dennehey Warner Coleman & Goggin in Harrisburg, declined to comment on the decision, citing his firm’s policy to not discuss cases with the media without prior consent from the client.

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