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Washington County Judge Addresses Facebook Discovery Decision

In the case of Prescott, et. al. v. Willis, et. al., No. 2012-2207 (C.P. Wash. Co. March. 3, 2013 O'Dell-Seneca, P.J.), Washington County Court of Common Pleas President Judge Debbie O'Dell Seneca addressed a discovery issue pertaining to a Defendants' Motion to Compel a Plaintiff to produce her Facebook username and password in a motor vehicle accident case.

Plaintiff claimed to have sustained injuries while riding as a passenger on a school bus. These injuries included "traumatic brain injury, concussion, post-concussion disorder, and lower back pain." During discovery, Defendants found five (5) photographs from the public portion of Plaintiff's Facebook profile which showed her engaging in activities that were inconsistent with the injuries she claimed to have suffered. Defendants followed with a Motion to Compel access to Plaintiff's private Facebook account, arguing that the private portions of the Facebook account are likely to contain other such photographs that are relevant to the litigation. Judge O'Dell Seneca framed the issue as follows: "Whether a litigant's broad right of discovery should be limited by a litigant's right to be protected from unreasonably burdensome and, overbroad, discovery requests or by privilege."

The Plaintiffs did not provide a written response to the Defendants' Motion to Compel. They instead relied upon Trail v. Lesko, 2012 WL 2864004 (Allegheny C., July 5, 2012, J. Wettick), which analyzed the law of social-media discovery and denied Motions to Compel. However, the Court in Prescott found the facts in Trail distinguishable. In Trail, Plaintiff's Motion to Compel was denied because the information desired was only relevant to the defendant's liability, the same which had been conceded. Damages were not at issue, as were in the current action. The Defendants in this matter made a threshold showing that relevant evidence may exist in private portions of the Plaintiff's Facebook profile based on the five photographs produced which were found in the public profile of Plaintiff.

The Court held that Plaintiff must produce the username and password of her Facebook account, granting the Defendants seven days to view the account, but strictly prohibited them from adding, creating, removing modifying or sending any contents within. After those seven days, Plaintiff was allowed to change her username and password to preclude further access. In support of the Order, Judge O-Dell Seneca stated:

"The relevance of social networking sites in litigation is a relatively recent issue and this Court found no binding precedent on the matter. In Pennsylvania, anything relevant to the case's subject matter, which is not protected by privilege, is discoverable. Defendants (sic Plaintiff) have asserted no privilege and the pictures which are in the private area of the Facebook profile can be "reasonably calculated" to produce relevant evidence."

Accordingly, because the Defendants met the relevancy threshold for purposes of discovery, the Motion to Compel was granted in part to allow Defendants seven days of access to Plaintiff's private Facebook account, subject to the restrictions stated above.

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