12/23/2021
Social media has changed how people communicate, and the law is adapting to these changes. Access to the private portions of a person’s social media accounts has become a heavily litigated issue.
Defense counsel will often seek disclosure of a Plaintiff’s private posts in an attempt to find information that might harm the Plaintiff’s case. This makes it important not to post on social media while litigation is ongoing. Whatever is said on social media, even if said in private, may be disclosed over the course of litigation. What may seem like a harmless post may be wrongly construed by opposing counsel or a Court.
Pennsylvania Courts have afforded significant protections to the private portions of a litigant’s social media account. In general, Courts have recognized that communications made in private, should remain private. Additionally, because social media communications are typically made with friends & family, these communications are inherently personal. Recognizing this, Pennsylvania Courts have found that private social media posts should only be disclosed under very narrow circumstances.
In Hunter v. PRRC, Inc., 2013 WL 9917150, No. 2010-SU-003400-71. (York C.C.P. Nov. 4, 2013), the Court analyzed when private social media postings can be disclosed in the “discovery” stage of litigation. Commenting on the wide protection that should be afforded to a user’s posts, the Court found that, a party making the request for social media information must make:
[A] threshold showing that otherwise available information leads to the reasonable probability that relevant information is contained within the private portions of the account. The hypothetical possibility that relevant or discoverable information may exist in an account held privately is not sufficient to meet this showing. Actual facts must be shown…
This “threshold showing” has become the standard for Pennsylvania Courts in deciding whether private social media postings should be disclosed. However, the analysis does not end there.
Information posted on a public page will likely be discoverable and will certainly be reviewed by opposing counsel. Accordingly, making your accounts private should be one of the first steps you take when deciding to bring a lawsuit. A Court may find that opposing counsel is not entitled to your private profiles, but if your profiles are public, you will not have the opportunity to fight opposing counsel’s access to the posts on these public profiles. Under Pennsylvania law, lawyers and law firms are prohibited from becoming friends with a litigant so as to access the litigant’s private profile. See, e.g., Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2009-02 (2009) (finding that an attorney, or the attorney’s agent, cannot “friend request” a party without disclosing the attorney’s role and purpose for the communication).
Read the complete article authored by McLaughlin & Lauricella. https://bit.ly/3FAOxzm McLaughlin & Lauricella PC is a Philadelphia-based law firm with offices in Pennsylvania, New Jersey & New York. Visit us at https://bit.ly/3aWKAZv or contact us at 215-568-1510.