Readers, never use Facebook to discuss any legal matter. Your postings on Facebook are never private.
In some cases, Facebook led investigators to the perpetrator of a crime, because he was dumb enough to brag about the crime on Facebook. An even dumber criminal updated his profile while robbing a home, and yet forgot to log off before leaving the scene of the crime.
But Facebook postings can betray you even if you are merely involved in a civil legal matter. A court may force you to give opposing counsel in litigation your password. You must then allow access to your public and private postings. You may be obliged to log in at the office of opposing counsel in a court case, to allow a paralegal or investigator to search through your profile and postings.
No Pennsylvania appellate court has established precedent about the privacy of Facebook postings. Our lower courts are split on whether or not Facebook pages must be made available to opposing counsel.
In Family Court, Facebook evidence has played the largest role in child custody and visitation cases. In one such case, tried by Norristown family law attorney Christian V. Badali, a mother wrested primary custody from her spouse after showing the father's Facebook post saying that he taped a picture of the mother to a punching bag, because he could not punch her in real life.
Results are the same in civil cases. A Montgomery County judge allowed a local man claiming he was sucker-punched during a soccer game, to investigate the Facebook page of his alleged attacker, ostensibly to find information to bolster his civil lawsuit.
In another case, a Franklin County, PA judge ordered plaintiff Jennifer Largent to turn over her Facebook user name and password to defendant Jessica Rosko, who allegedly caused an auto accident that left plaintiffs Jennifer and Keith Largent with "serious and permanent physical and mental injuries." One Facebook page revealed Jennifer Largent posting about going to the gym, despite testifying in the court case that she needed to walk with a cane.
In some cases a judge will not allow the other attorney to log into your Facebook account. The judge may ask for the passwords to conduct an examination in chambers and then turn over to opposing counsel information found relevant to the case. A Northcumberland County PA judge determined that it would be an unfair burden on the court if it had to go through the plaintiff’s Facebook page to determine what is relevant and what is not. It ordered the plaintiff to provide his Facebook username and password to the defendant.
There are also Pennsylvania cases where a litigant was denied access to another party’s Facebook page. The trend in Pennsylvania is to allow a party access to the opposing party’s Facebook page as long as something in the public profile suggests that relevant information may be contained in the private profile.
If you are involved in litigation, review any photographs posted online. If you are claiming a back injury in a lawsuit, don’t post pictures of yourself on vacation, outdoors, or at parties and social functions. Even if the photos were taken on a rare day when the pain was not that bad, how do you think they will look to a jury?
In fact, since defense lawyers and claims adjusters will look into your social media in every case, it might not be a bad idea to deactivate your Facebook account completely while involved in litigation. Chances are that some things on your Facebook page may offend SOMEONE on your jury. Since juries give awards to people they like, you don’t want to give the other side any ammunition against you.
Stay well until the next post.
Robert Gasparro is an Elder Practitioner (an accountant and attorney). He can be reached at firstname.lastname@example.org.