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.