Home » Interesting cases » Friending defense counsel not required, but user info must be disclosed

Friending defense counsel not required, but user info must be disclosed

As a personal injury plaintiff, the last person you would consider a friend would be the lawyer for the defendant in your case. A Pennsylvania court agrees, and would not require the plaintiff to accept defense counsel as a “friend” on Facebook. But another court required a plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants. These cases point out the vulnerability of what you may think are private posts. As a party to litigation, you have to be careful about what you post.

In Piccolo v. Paterson, Judge Albert J. Cepparulo issued a one-paragraph order denying a motion to compel filed by attorneys retained by Allstate Insurance Co. seeking access to the photos of plaintiff Sara Piccolo that she posted on the social networking site. In denying the request, the judge ruled that the “materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes” the plaintiff. You can read more about the case by clicking here.

But in another case in the same state, McMillen v. Hummingbird Speedway Inc., the court held that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defendant’s attorney. The defense argued access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo. In its ruling, the court stated that:

Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential….

When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality.

The McMillan court expressly observed that the plaintiff was making representations on the publicly viewable portion of his Facebook page that were inconsistent with the position he took in the litigation. Because of that, the court noted that the defense in that case would have been prejudiced without access to the private portions of the plaintiff’s Facebook page.

The bottom line is that social media, while it may provide an outlet for venting to your friends, can also provide fodder for a wily defense attorney looking to turn your case upside down.

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