Social media as evidence in an employment lawsuit is an area of the law that is, to put it mildly, unsettled. A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. CP May 19, 2011), the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery.
The plaintiff-employee, Zimmerman, sued his employer after he was injured on the job by a fork lift. Zimmerman sought lost wages, as well as compensation for pain and suffering as a result of the “permanent diminution in [his] ability to enjoy life and life’s pleasures.” In support of his damages claim, Zimmerman alleged during a deposition that he could no longer wear shorts because he was so embarrassed by scarring on his leg.
Subsequently, counsel for Weis Markets did what all employment attorneys should do—they checked Facebook. On public portions of Zimmerman’s Facebook and MySpace pages, he had posted pictures of himself wearing shorts with his scars clearly visible. Based on the public information available, Weis Markets sought access to the private portions of Zimmerman’s profiles. In his effort to protect this information, Zimmerman claimed that his privacy interest outweighed the need to obtain relevant information in discovery.
In addressing the dispute, the Court relied on three principles: “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”
The Court then turned to other cases that emphasized the irony of allowing a party to litigation to hide behind privacy settings on a website where the primary purpose of the website is to share information. Given the intent behind social networking sites—the voluntary disclosure of private information—the Court concluded that Zimmerman did not have a reasonable expectation of privacy as to the information posted there, and consequently could not assert his privacy interest as a defense to discovery. This is particularly true since it was Zimmerman himself who raised the issue of his physical condition by initiating the litigation. Consequently, the Court ordered Zimmerman to provide opposing counsel with his passwords, user names, and log-in names for all MySpace and Facebook accounts he maintained.
The Court did note, however, that its opinion did not open the door to fishing expeditions into the private portions of any party’s social networking accounts. The Court emphasized that this case was distinguished by the fact that Weis Markets was able to meet a threshold burden of showing that publicly accessible portions of the site contained relevant information, allowing an inference that similar information existed in private portions of the site.