Plaintiffs Making Issue of Emotional, Physical Conditions May Be Required to Surrender Social Media to Defendants in Discovery

On May 19, 2011, in Zimmerman v. Weis Markets, No. CV-09-1535, 2011 WL 2065410, *1 (Pa. Com. Pl. May 19, 2011), the Northumberland County Pennsylvania trial court ordered a former forklift operator to make available his social media information from his MySpace and Facebook accounts to his former employer. Despite claiming serious and permanent health problems and diminution in enjoying life's pleasures, his employer found public postings about Zimmerman enjoying motorcycle riding and bike stunts. The Zimmerman court concluded the employer's right to discover relevant information about Zimmerman on the non-public portions of his Facebook and MySpace pages outweighed any of Zimmerman's alleged privacy interests. It stated: "Zimmerman placed his physical condition in issue, and Weis Markets is entitled to discovery thereon."

While the Court noted that the decision should not be construed as a carte blanche entitlement to plaintiffs' Facebook and MySpace information, it reflects the increasing trend towards courts' requiring plaintiffs to produce such information when placing their emotional and physical conditions at issue. See e.g., Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 655-57 (N.Y. Sup. Ct. 2010) (citing to federal and Canadian law in reaching its conclusion that the plaintiff had "consented to the fact that her personal information would be shared with others" by creating her Facebook account and that "Defendant's need for access to the information outweighs any privacy concerns that may be voiced by [p]laintiff"); EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010) ("It is reasonable to expect severe emotional or mental injury to manifest itself in some [social networking site] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress."); Bass v. Miss Porter's School, Civ. 3:08cv1807, 2009 WL 3724968, *1 (D. Conn. Oct. 27, 2009) (ordering all 750 pages of Plaintiff's Facebook content to be produced).

In reaching its conclusion, the Zimmerman court relied primarily upon the reasoning of a Jefferson County Pennsylvania trial court in McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa. D.&C., Lexis 270 (Pa. Com. Pl. September 9, 2010), and a Suffolk County New York trial court in Romano v. Steelcase, Inc. Both were personal injury cases, involving plaintiffs claiming extensive injuries. In both cases, defendants' review of the plaintiffs' public postings on social networking sites, however, raised questions about the plaintiffs' injury claims. In McMillen, the plaintiff had posted information about his fishing trips and attendance at the Daytona 500 in Florida. Likewise, in Romano, the plaintiff posted information about her trips from New York to Pennsylvania and Florida during the time when she claimed her injuries prohibited such activity. Like Zimmerman, the McMillen and Romano cases were not fishing expeditions into the personal lives of the plaintiffs, but the defendants were able to cite to plaintiffs' public information that led them to believe that there was likely additional, relevant non-public social networking information.

The 2010 McMillen decision, the seminal Pennsylvania case, addressed three key principals. First, under Pennsylvania law, there is no privilege for information posted in the non-public sections of social websites. Second, the postings on social media sites, such as Facebook and MySpace, cannot be considered confidential because: (a) their purpose is to disseminate information in an open, public way that is easily shared with and by others and (b) their use terms make clear that information shared on the sites is not private and may be disclosed. Third, liberal discovery is generally allowable, and the pursuit of the truth related to the alleged claims is paramount to discovery. Based on its analysis of those factors, the McMillen court ordered McMillen to provide the name of his social network computer site(s), his user name(s), his login name(s), and his password(s).

The Zimmerman decision serves as a reminder for defendants to review plaintiffs' public postings of themselves and to request plaintiffs to produce their non-public information on social media sites when plaintiffs are placing their physical or emotional states at issue in the litigation. Such information can be crucial not only in personal injury cases like the ones described above, but also in employment discrimination cases where plaintiffs are seeking compensatory damages, alleging emotional distress.