No Privilege for Information Posted on Social Network Sites — Court Orders Production of Plaintiff’s Social Network Account Usernames and Passwords

A Pennsylvania Court of Common Pleas has ordered the production of a plaintiff’s social network account passwords and usernames in the recent decision of McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD (Pa. Ct. of Common Pleas, Jefferson Cty. September 9, 2010) In this case, McMillen sued Hummingbird Speedway Inc. and others for injuries he allegedly suffered when he was rear-ended during a cool down lap after a stock car race in 2007 on Hummingbird’s premises. During discovery, Hummingbird requested that plaintiff disclose information regarding social network websites that plaintiff belonged to and asked that plaintiff turn over his log-in and passwords for his accounts. McMillen responded that he had accounts on Facebook and MySpace but objected to any request for his log-in and passwords on the basis that the requested information was privileged and would lead to the production of private communications. Ultimately, Hummingbird filed a motion to compel the production of the requested information as they wanted “to determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claims.” The court found that such information is not protected by any evidentiary privileges under Pennsylvania law and thus, is discoverable.

In deciding Hummingbird’s motion to compel, the court first analyzed whether the requested information was even discoverable under Pennsylvania’s discovery rules. The court concluded that, based on Pennsylvania’s broad discovery rules, as long as the information requested is relevant to the litigation, whether directly or peripherally, a party may obtain discovery regarding any unprivileged matter. The court further explained that “as a practical matter, that means that nearly any relevant materials are discoverable, because this Commonwealth recognizes only a limited number of privileges.” The court did not offer any discussion as to whether the information requested by Hummingbird Speedway was actually relevant to the litigation and simply moved on to the more pressing issue — privilege.

The court handily dealt with McMillen’s argument that his social network account information and the communications made on these sites were of the nature that warranted protection of an evidentiary privilege. After reviewing the relevant policies on Facebook and MySpace, the court found that any expectation of privacy when engaged in communications on such sites was unrealistic. Finding that Pennsylvania did not recognize a privilege for social network communications, the court ordered production of plaintiff’s account information within 15 days to defendants’ counsel. The court further instructed that plaintiff was not to take steps to delete or alter the existing information on his social network accounts.

As recently seen in Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010) and now in McMillen, a trend is evolving where communications made on social networking websites, indiscrete or otherwise, will not be protected under the shroud of privacy or privilege when it argued that such communications are relevant to a litigation. As the McMillen court reasoned, allowing access to social network sites primarily to gain assistance in proving the truth or falsity of any claim clearly outweighs the relational harm that may be realized by social network computer site users. McMillen is just another reminder that the ability to ascertain the truth is now extended to cyberspace, and communications made on social network sites, however made, can prove damaging to a litigation. Based upon the court’s ruling in McMillen, would-be litigants, at least in personal injury actions, should now heed the advice “think before you speak, or in this case, before you type” for fear of undermining the strength of the case or defense.

Additional discussions on this topic from members of the Gibbons Employment Law Department and the E-Discovery Task Force can be found here.

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