Using Facebook to Obtain Information During Discovery

    “Digging up dirt” on a former employee who filed suit against your company can often provide useful ammunition to challenge their credibility.  Social networking sites can be a fertile garden for your digging, but how do you get access to the former employee’s social media site?  Is it legal to access their Facebook page, or are you setting yourself up for a claim of invasion of privacy?

            Courts in Pennsylvania are showing us the way by holding that there is little expectation of privacy on a social media site.  If a party in a lawsuit posts information on his or her social media site, that information can fall within the zone of discovery.  “Only the initiated or foolish could believe that Facebook is an online box of secrets”, said Judge Richard Walsh, in an auto accident case, in which the Plaintiff alleged serious injuries.  Unfortunately for the Plaintiff, her Facebook posts talked about going to the gym and enjoying other activities.

            When defending a case I now consider the appropriate time to make a discovery request to obtain all information on the Plaintiff’s social media sites.  I also send a letter to the Plaintiff’s attorney requesting that the Plaintiff not delete anything from these sites.

            What do you think? Should these sites be off limits?  Should a person be able to post with impunity?