Most have likely heard the warnings about employers “googling” or looking up online profiles of prospective employees.  However, did you know that your social media posts can come back to haunt you in a lawsuit or court proceeding?

If you think you’re protected because of your privacy settings, you’re mistaken.  People involved in personal injury cases are often cross-examined in court with pictures taken from their profiles showing them engaging in sports and other physical activities which they claim they cannot do anymore due to the accident. Parents involved in custody battles are being impeached with photos of partying and embarrassing behavior.  As evidenced by recent caselaw, courts across the country are ordering parties to divulge passwords and sign authorizations permitting access to social media accounts like Facebook and MySpace, including any records previously deleted or archived.

While the discoverability of Facebook information has not yet been addressed by New Jersey Courts, Pennsylvania has a number of recent cases that may be indicative of the shift with regard to the discovery of social media information across the country.

Most recently, in Gallagher v. Urbanovich, a Pennsylvania judge allowed a man claiming he was sucker-punched during a work-sponsored soccer game to investigate the Facebook page of his alleged attacker to find information to bolster his civil lawsuit.  Gallagher v. Urbanovich, No. 2010 – 33418 (C.P. Mont. Co. Feb. 27, 2012).  The judge ordered the alleged attacker to not delete or otherwise erase any information on his Facebook account.

In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), after the defendants reviewed the public portions of the plaintiff’s Facebook account, discovering comments regarding his trip when the alleged injury in question took place, they asked the court to compel production of his passwords to these accounts.   The Court held that, while people use forums such as Facebook and MySpace to seek advice on personal and private matters, “it would be unrealistic to expect that such disclosures would be considered confidential.”  The court held that access to one’s social networking sites is not protected by any privilege.   As a result, the plaintiff was compelled to turn over his usernames and passwords of his Facebook and MySpace accounts.

A similar result was reached in Zimmerman v. Weise Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May 19, 2011).  In the Zimmerman case, a plaintiff brought suit claiming he was seriously injured while operating a forklift in the defendant’s warehouse. In his complaint, the plaintiff claimed he injured his leg and, that due to the scar on his leg, he was too embarrassed to wear shorts.  While viewing the public portion of plaintiff’s Facebook page, the defendant discovered pictures of the plaintiff engaging in activities he claimed he could no longer do and wearing shorts.  Defendant then filed a motion with the Court seeking plaintiff’s username and password.

The Zimmerman court held that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites.”  In so doing, it specifically warned litigants that “[w]ith the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”  The Court ultimately ordered the plaintiff to turn his username and password over to the defendant.

In November 2011, another Pennsylvania court ordered a plaintiff in a personal injury auto accident case to disclose her Facebook password. Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011). The defendant sought this information, claiming that the plaintiff posted photographs and status updates showing that she was not permanently disabled, as she claimed.  The court found that the Stored Communications Act, which prevents the government from compelling Internet Service Providers and Facebook from providing passwords, does not stop the court from compelling the plaintiff in a civil action from releasing her password. The order was entered despite the fact that exchanging passwords violates Facebook’s terms of service. The court concluded that Facebook posts are not “truly private” and producing her password will result in little harm or burden.

The bottom line is: Be careful and smart about what you post online.  Some things to be mindful of:

• Do not accept “friend” invitations from people you do not know.
• Adjust the privacy settings on your profiles to private.
• Do not post anything to your profiles discussing your lawsuit and/or related injuries.
• Reconsider posting pictures, especially those that will be used to dispute your injuries or tarnish your image.

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Importantly, if you bring a lawsuit or get sued, you should not try to destroy, modify, alter, tamper with or do anything to evidence stemming or related to the litigation in dispute. Stern Law instructs all clients not to delete or alter their online profiles as a court would likely construe that as destruction of evidence.