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The Big Reveal of ‘Private’ Social Media Data

In Pennsylvania an unofficial litmus test is emerging, requiring counsel to have at least an indication that content on a social networking site will contradict a litigant's testimony or claims, before the court will grant access to "private" information on such sites.

By Kevin M. Blake, Esq. | Updated on January 27, 2012
It has become common for litigants to scour the Internet in search of evidence about an opposing party or witness. Increasingly, social networking sites such as Facebook and Myspace are proving to be a treasure trove of impeachment evidence for litigants, particularly in the practices areas of personal injury, workers’ compensation, and insurance coverage. Social networking sites are proving to be a low-cost, high-yield form of discovery that can produce incredibly damaging personal information of a party.

In Dexter v. Dexter, the mother in a bitter custody dispute documented on her Myspace page that she was a sadomasochist, bisexual pagan, who would consider drug use while her daughter was asleep and had in fact used drugs in the past. “Smoking gun” evidence like this has become the norm, not the exception. As long as the information sought is relevant or likely to lead to the discovery of relevant evidence, some courts have been willing to allow the discovery of a party’s social networking material.

Increasingly, courts are compelling not only the production of “private” portions of Facebook pages, but also the production of the actual passwords to the pages themselves, thereby granting opposing counsel personal access to the pages. For litigants in Pennsylvania, however, an unofficial litmus test seems to be emerging, requiring counsel to have at least an indication that the content of the social networking site will contradict a litigant’s testimony or claims, before the court will grant access to “private” social networking sites and thus the information they contain.

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