Wade Clark Mulcahy LLP

The issue of discovery access to a party’s private social media postings had not previously been addressed by a Pennsylvania appellate court.  The Monroe County Court of Common Pleas dealt with this question in <a href="https://www.law.com/thelegalintelligencer/almID/1521091529PA180273/?download=180273.pdf"><em>Roth v. Great Wolf Lodge of the Poconos, LLC</em></a> by referring to trial courts from other jurisdictions.  It held that there was no evidentiary threshold that a party seeking private information from a social media account needs to meet so long as it can show that such information is relevant to the other party’s claims.
In <em>Roth</em>, plaintiff, Michael Roth, claimed he collided with his daughter on a waterslide at the Great Wolf Lodge.  Great Wolf Lodge demanded the Facebook wall posts of Michael and his wife, Lauren, made during the year immediately prior to the alleged accident and the year after.  The Roths refused to comply.  They objected on the grounds that Great Wolf Lodge failed to produce any evidence indicating that the private sections of their Facebook accounts would provide relevant information and argued that Great Wolf Lodge was entitled only to information posted to the public sections.  Great Wolf Lodge filed a motion to compel responses to its requests for the private information.
Without any binding Pennsylvania precedence, the court relied primarily on three cases from different federal district courts.  The first, <em>Georgel v. Preece</em>, a Kentucky federal case, required an evidentiary bar, holding that private information from social media accounts is discoverable only if the party seeking the information can show that the other party’s public postings contain information that undermines that party’s claims.  At the other end of the spectrum was <em>Higgins v. Koch Development Corp.</em>, an Indiana federal case that held that all social media postings were relevant and required to be produced without any evidentiary showing by the party seeking the information.  Finally, <em>Giachetto v. Patchogue-Medford Union Free School District</em>, a New York federal court held that the proper method was to have the non-seeking party’s counsel review the information and determine what is relevant to the claims, keeping in mind the broad scope of discovery.
The <em>Roth </em>court favored the approach from <em>Giachetto</em>.  It opined that imposing the <em>Georgel</em> evidentiary bar could shield relevant evidence from disclosure merely because a social media user chose not to share any information publicly.  A more balanced approach was adopted.  The court decided that counsel for the Roths would have to review the Facebook accounts for private postings related to the alleged accident, and the Roths’ ability or inability to enjoy physical activity, which it deemed relevant to the Roths’ claims.
Thanks to Robert Truchick for his contribution to this post.
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