There are both private and public aspects of Facebook. How does the privacy of Facebook play in to a civil law trial considering social networking platforms are extremely universal and seemingly public? A variety of cases explore the privacy of these platforms in a court of law.

1. Social media:
Evolving Technology, Evolving Case Law
Stewart J. Eisenberg
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.
1634 Spruce Street
Philadelphia, PA 19103
(215) 546 - 6636
www.erlegal.com
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2. What makes Facebook unique
1. Facebook is a photograph repository in which clients are depicted in their
pre- and post-incident status:
Users can be “tagged” by other Facebook users in other photographs.
This can be adjusted via Facebook’s user settings.
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3. 2. Facebook, through its “wall” application, serves as a quasi-diary where users record
their thoughts via “status updates”:
Facebook users can post to each
other’s walls, depending on the
user settings. When this happens,
the result is a publicly-viewable
dialogue, as opposed to a private
e-mail. However, public access to
walls can be restricted.
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What makes Facebook unique
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4. 3. Facebook, via its publication of a user’s “friends” provides a method for an
opposing party to ascertain and contact potential witnesses
What makes Facebook unique
The publication of Facebook friends can be limited by the user via Facebook’s privacy settings
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5. A Facebook page with significant public access
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There is a publicly-viewable wall, there is a public list of friends, and all
photographs are publicly accessible.
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6. Restricting public access to Facebook
profiles is simple
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7. [Plaintiff] has no privacy rights in her Facebook postings, and there is no general Facebook
social networking privilege. Furthermore, plaintiff cannot claim the protections of the stored
communications act.
Facebook’s foremost purpose is to “help you connect and share with the people in your life.”
That can only be accomplished by sharing information with others. Only the uninitiated or
foolish could believe that Facebook is an online lockbox of secrets.
LARGENT v. REED
(No. 2009-1823, FRANKLIN COUNTY – 11/8/2011 OPINION):
State of the Law
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8. Plaintiff complains that defendant’s motion is akin to asking her to turn over all of her private
photo albums and requesting to view her personal mail. Photographs posted on Facebook
are not private, and Facebook postings are not the same as personal mail.
We further note that, in filing a lawsuit seeking monetary damages, plaintiff has placed her
health at issue, which vitiates certain privacy interests. Any posts on Facebook that
concern plaintiff’s health, mental or physical, are discoverable, and any privilege concerning
such information is waived.
LARGENT v. REED (cont.)
(No. 2009-1823, FRANKLIN COUNTY – 11/8/2011 OPINION):
State of the Law
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9. If a plaintiff is suspected of exaggerating his or her injuries because they have posted
certain comments or photos on the public portion of their social networking website profiles,
then that information is discoverable.
Defendant has sought information contained on plaintiff’s social networking profiles by
interrogatories. Plaintiff has objected, responding that the request is not reasonably
calculated to lead to discoverable evidence and because the plaintiff has a reasonable
expectation of privacy [to] this information.
ARCQ v. FIELDS
(No. 2008- 2430, FRANKLIN COUNTY – 12/7/2011 OPINION):
State of the Law (few weeks later)
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10. However, in the present case defendant's request to gain access to plaintiff’s private profiles
is not the result of viewing the public portion of the plaintiff’s profile.
If the defendant has viewed public postings and seeks access to the private portion of the
profile believing that there would be additional information via communications with friends
of the plaintiff or postings that took place on the website that would be relevant, then that
information is discoverable.
ARCQ v. FIELDS (cont.)
(No. 2008- 2430, FRANKLIN COUNTY – 12/7/2011 OPINION):
State of the Law (few weeks later)
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11. If defendant had viewed the public portion of the opposing parties’ social networking profile,
which contained relevant information, and therefore had some reason to believe the private
portion might contain information as well, their requests would be reasonably calculated to
yield information that would lead to admissible evidence. That is not the case here, so the
information requested is not discoverable.
ARCQ v. FIELDS (cont.)
(No. 2008- 2430, FRANKLIN COUNTY – 12/7/2011 OPINION):
State of the Law (few weeks later)
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12. Thus, while it is conceivable that a person could use them as forums to divulge and seek
advice on personal and private matters, it would be unrealistic to expect that such
disclosures would be considered confidential.
Facebook, MySpace, and their ilk are social network computer sites people utilize to
connect with friends and meet new people. That is, in fact, their purpose and they do not
bill themselves as anything else .
MCMILLEN v. HUMMINGBIRD
2010 PA D&C LEXIS 270 (JEFFERSON CTY):
Other Opinions
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Reading their terms and privacy policies would dispel any notion that information one
chooses to share, even if only with one friend, will not be disclosed to anyone else.
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13. This should not be construed as an entitlement to this type of information in every personal
injury case where damages are claimed (i.e. A carte blanche entitlement to Facebook and
MySpace passwords, user names, and login names as part of a discovery request by way
of interrogatories or request for production of documents) as that issue is not before the
court at this time.
ZIMMERMAN v. WEIS MKTS
2011 Pa. Dist. & Cnty. (NORTHUMBERLAND CTY) -
The court followed McMillen, but additionally held as follows:
Other Opinions
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Generally, this court is of the view that a motion for this special type of discovery must be
made with allegations of some threshold showing that the publicly accessible portions of
any social networking site contain information that would suggest that further relevant
postings are likely to be found by access to the non-public portions.
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14. As noted herein, a review of the publicly accessible portions of the Facebook and MySpace
sites revealed relevant information, and thus, it was reasonable to expect that further
evidence pertinent to the case would be found in the non-public portions of these sites.
ZIMMERMAN v. WEIS MKTS (cont.)
2011 Pa. Dist. & Cnty. (NORTHUMBERLAND CTY) -
The court followed McMillen, but additionally held as follows:
Other Opinions
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There must be some factual predicate for the examination of the non-public portions of
social networking sites. So called “fishing expeditions” will not be authorized.
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15. Tell clients to follow these five, simple rules:
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1.) Do not delete photographs or postings from Facebook accounts.
2.) Do not deactivate Facebook accounts. Opposing parties will ask for a rationale for
deactivation, which may lead to additional discovery on the purported grounds of
spoliation.
3.) Pursuant to ARCQ v. Zimmerman restrict publicly viewable information on Facebook
via the privacy Settings (i.e. Make sure that only approved friends can view
photographs, wall posts, and the identity of other friends).
4.) Restrict wall posts and likewise restrict the “tagging” ability of other Facebook friends
in regards to photos.
5.) Effective immediately, do not post additional photographs on Facebook, or any
additional status updates until the conclusion of the litigation.
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16. Stewart J. Eisenberg
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.
1634 Spruce Street
Philadelphia, PA 19103
(215) 546 - 6636
www.erlegal.com
For more information,
Visit www.erlegal.com
www.erlegal.com
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