TO POST OR NOT TO POST
Kevin L. Connors, Esquire
Whether tis nobler to post on Facebook, and to suffer the salubrious likes and dislikes of friends promoting health and welfare, while conspicuously visible to the naked eye of the known universe, or to sulk, alas, silently, while a classic battleground has arisen, at least for civil litigation discovery purposes, between those who post and those who use post its!
Previously reporting on Facebook issues that arose inMcMillen, yet another Facebook decision has come out of the Pennsylvania Common Pleas system, with the Honorable Richard Walsh, in the Franklin County Court of Common Pleas, granting the Defendants’ Motion to Compel inLargent v. Reed and Penna, compelling the Plaintiff to provide the Defendants with her Facebook e-mail and password, to allow the Defendants access to the Plaintiff’s Facebook postings.
The trial court order required Plaintiff to produce this information within fourteen (14) days, allowing the Plaintiff to change her Facebook password thirty-five (35) days after the date of the order, in order to restrict access by defense counsel.
Several attributes of Facebook were reviewed by the trial court, in its Opinion, as follows.
Next, only people with a user account can access Facebook, although access, for all practical purposes, is available to anyone with an e-mail account, who can then establish a Facebook account.
Facebook requires that users be at least 13 years or older, although this policy is impossible to enforce, and appears to be openly flouted.
Facebook users can set their privacy settings to various levels, although a user’s name, profile picture and user ID are always publicly available.
At the least restrictive setting, being “public”, 800,000,000 (that’s right) Facebook users can view whatever is on a user’s profile.
The intermediate level restricts visibility to the user’s Facebook friends, with the most restrictive, only allowing the user to view their profile.
Since Facebook permits “tagging”, whereby friends can tag each other in postings, such as photographs, notes, videos, or status updates, Facebook users know that their Facebook information can be shared by default, requiring the user to take affirmative steps to prevent the sharing of such information.
InLargent, the defense contended that the Plaintiff must be compelled to disclose her Facebook user name and password, as her profile was public, and the defense contended that the Plaintiff’s Facebook posts contradicted her claims of serious injury. Seeking to block the defense from having access to her Facebook postings, the Plaintiff contended that the information sought was irrelevant, and that the disclosure of this information might potentially cause unreasonable embarrassment and annoyance. The Plaintiff also claimed that disclosure violated privacy laws, in particular, the Stored Communications Act of 1986.
In a very well-reasoned Opinion by Judge Walsh, reviewing and resolving Pennsylvania’s discovery standards, potential privilege and privacy concerns, privilege issues under Pennsylvania Law, the Stored Communications Act, in the scope of the defense’s discovery request, Judge Walsh found that the information sought on the Plaintiff’s Facebook profile was not only relevant, was not covered by any specific privilege, and that the requests to produce was not unreasonable, and that the information sought was discoverable.
No less true than inMcMillen, which also permitted the defense access to a Plaintiff’s Facebook postings,Largent seems to track the general thrust of Facebook-profile litigation, which is that there is no keeping secret that which is already public.
If you post, it is public, and if it is public, it is discoverable.
As a routine manner, discovery requests, on both sides of the aisle, account for the humanoid penchant for always gazing with profane wonder into the miraculous caricature of our own lives, replicating postings in the Facebook universe as though sculpting a more perfect image of ourselves, and this is not discoverable why.
If Facebook is a still pond, the post that you place on its unbroken face is the ripple substantiating your existence.
No matter where you post, there you are!
How could you possibly think that this would have any other outcome, other than disclosure.
Knowing that no one is alone, Facebook legitimizes a license we all secretly sanction, which is simply self-importance through a medium permitting publication without consequence in terms of historical importance.
Face it, we post because we can, and because we can, we are drawn, like moths, to this flame.
Trust us, we just get it!
It is trust well spent!
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