York County Court of Common Pleas recently issued an opinion denying a Defendant’s discovery request to obtain Facebook information from a Plaintiff, in which the Plaintiff opted that information to be private, under Facebook’s privacy settings.
In this case, the Defendant filed a Motion to Compel Discovery on the Plaintiff to obtain information on Plaintiff’s Facebook that was set as private. Defendant was seeking information regarding Plaintiff’s diagnosis as the result of a personal injury litigation matter. Specifically, the Defendant was seeking access to over 650 photos of the Claimant that would go to contradict the Claimant’s contention of “loss of life’s pleasures” and ‘loss of sense of well being”.
This Motion to Compel Discovery of private Facebook information was an issue of first impression before the York County Court of Common Pleas. The Court heavily analyzed a previous ruling made by Judge Wettick in Trail v. Lesko, 2012 WL 28640004 (2012).
However, the Court chose to shape it’s own rule. The Court said;
Where discovery has been served requesting private information contained in an account held by a party on a social media platform that the party specifically elected to make private . . . an objection lodged by the party to the discovery will be sustained unless the party serving the discovery makes a threshold showing that otherwise available information leads to a reasonable probability that relevant information is contained within the private portion of the account. Hunter v. PRRC, Inc t/d/b/a PRICE-RITE No. 2010-SU-3400-7 (2010)
The standard handed down by the President Judge Stephen P. Limbaugh is pretty restrictive, requiring a very specific rather than a broad showing for the need of such evidence that is private. President Judge Limbaugh rejected hypothetical showings.
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 . . . ” Id.
If the party that filed the motion can sustain the threshold showing burden, then the burden shifts to the objecting party.
However if the opposing party can establish that discovery would cause unreasonable annoyance, embarrassment, oppression, burden or expense, and therefore be prohibited by Rule 4011 or require limitation pursuant to Rule 4012, then discovery will not be permitted or will be limited.”
The Court did identify that if a person chose to make the information private AFTER receiving the discovery request, that material may very well be discoverable.