Judge Wettick Weighs in on the Discoverability of Private Facebook Content

Wednesday, July 11, 2012

Written by Harry M. Roth, Esquire & James P. Goslee, Esquire

On July 3, Allegheny County Court of Common Pleas Judge Stanton Wettick issued what may be a seminal opinion regarding the discoverability of private Facebook content in Pennsylvania. Judge Wettick’s opinion is significant because his analysis varies from the standard threshold relevancy model adopted by a majority of Pennsylvania courts and utilizes a balancing approach under Pennsylvania Rule of Civil Procedure 4011(b).

In Trail v. Lesko, a plaintiff sued a defendant in connection with injuries from an automobile accident. Each party sought to discover private content from the other’s Facebook page. Naturally, both sides refused and cross motions to compel were heard by Judge Wettick. Judge Wettick began his opinion by noting that in the past year, defendants have filed an increasing number of motions to gain access to plaintiffs’ Facebook profiles. Although he normally disposes of these motions from the bench, the Judge stated that he decided to issue a written opinion in order to provide guidance to future litigants.

Because no appellate courts have ruled on the discoverability of private Facebook content, Judge Wettick reviewed decisions by various Common Pleas Courts. He observed that the majority of Pennsylvania decisions on the issue “follow a consistent train of reasoning” and require a party seeking to discover private content to “articulate some facts that suggest relevant information may be contained within the non-public portions of the profile.” To this end, Judge Wettick noted that Pennsylvania courts typically rely on a litigant’s public profile – if their public profile contains content relevant to their claims it opens the door for access to private content.

Judge Wettick seemed to disagree with Pennsylvania’s all-or-nothing approach to Facebook discovery. He noted that Pennsylvania’s approach often results in “the wholesale denial of the request on the one hand and the granting of unlimited access to the user’s profile on the other.” According to Wettick, other jurisdictions have tried to establish a “middle ground” approach with narrowly tailored discovery orders and initial reliance on counsel to identify relevant content.

Unlike other Pennsylvania courts that have relied almost exclusively on relevance in granting or denying Facebook discovery requests, Judge Wettick also considered Pennsylvania Rule of Civil Procedure 4011(b), which bars discovery that would cause “unreasonable annoyance, embarrassment [or] oppression . . . to any person or party.” According to Wettick, 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.’” Interestingly, although Judge Wettick deemed discovery of private Facebook content to be “intrusive,” he concluded that the level of intrusiveness was low. According to Judge Wettick, “on a scale of 1 (the lowest) to 10 (the greatest), the intrusion from most Facebook discovery is probably at a level of 2. This is so because the party resisting the discovery has voluntarily made this information available, in most instances, to numerous other persons, none of whom has any legal obligation to keep the information confidential, and Rule 4011 bars only discovery that is unreasonably intrusive.”

Judge Wettick ultimately fashioned a balancing approach for determining if discovery of Facebook content is permissible under Rule 4011. Courts should consider the “level of intrusiveness” on the one-hand and the “potential value of the discovery” on the other. In the case of a “level 2 intrusion” – which covers most private Facebook content – “the party seeking the discovery needs to show only that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.”

Judge Wettick went on to deny both parties’ requests for private content “because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case.” While Judge Wettick’s approach has value, the presumption he makes that discovery of private content is minimally intrusive approaches the type of conclusory finding that he sought to avoid in the first instance. Although defendants are still required to show that private content is relevant to the outcome of a case, plaintiffs are now confronted with a judicial assumption that the level of intrusion in requiring production of most of this material is, at least according to Judge Wettick, very low. It would seem that the more consistent approach would be to consider the circumstances under which private communication was exchanged before assigning a numerical value as to the intrusiveness of discovery.

The upshot of Trail v. Lesko is that Pennsylvania courts will now use a balancing approach in determining whether private Facebook content is discoverable. One side of the balance is relevance, on the other is intrusiveness. While Judge Wettick offers a rational approach to assessing whether information shared via social media should be discoverable, his conclusion that discovery of most Facebook content minimally intrusive, justifies advice to litigants that they should be very careful with respect to what they decide to post.