We recently posted about Zimmerman v. Weis Markets, a case in which a Pennsylvania court required an employee to turn over his Facebook and MySpace log-in information to the opposing party during discovery. An earlier-filed opinion from a different judge in the same court, though, reached a different conclusion. In Piccolo v. Paterson, Pennsylvania Common Pleas Court Judge Cepparulo denied a motion to compel the plaintiff to accept a Facebook friend request from opposing counsel.
The Court’s Order did not elaborate on its rationale but the briefing on the motion to compel reveals that the plaintiff testified about the contents of her Facebook page during her deposition. As in Zimmerman, counsel was particularly interested in the photographs posted on Facebook. When it was discovered that the plaintiff’s photos could be accessed only by her “friends,” defense counsel sought to compel the plaintiff to accept his friend request. Just as in Zimmerman, the plaintiff in Piccolo demurred on the basis that disclosure of such information invaded her privacy and was generally annoying, embarrassing, oppressing, and/or burdensome.
The Court denied the motion to compel primarily based on the fact that the plaintiff already had provided photographs of her injuries. Because defense counsel made no showing that any photos of the plaintiff’s Facebook photos would be inconsistent with her allegations, the court denied defendant’s request. In essence, it appears that Judge Cepparulo concluded that the defense was unable to meet the threshold burden of establishing relevancy that was expressly established by the Zimmerman opinion. However, the Piccolo opinion seems to point out a significant loophole in the Zimmerman Court’s rationale: counsel cannot meet its threshold burden of proving relevance if a litigant’s social networking privacy settings limit access to “friends.”
See also Social Media Passwords Are Discoverable (McMillen v. Hummingbird Speedway, Inc.);
Defendant Granted Discovery of Plaintiff’s Facebook Profile (Romano v. Steelcase)