Patricia A. Lafferty

If you know, you know! Social media has become ubiquitous and continues to evolve into myriad platforms. As the chaos surrounding a threatened shutdown and brief outage of TikTok illustrated in January 2025, most people believe that they cannot and simply do not want to live without it. Since Facebook was founded in 1996, social media has reached over half the world’s population. In 2010, there were 970 million active social media users globally. That number has ballooned to 5.24 billion users in January of 2025. In the United States, 70.1% of the total population actively use social media. Amazingly, Americans spend an average of 2 hours and 9 minutes on social media every day. With these staggering numbers in mind, it would be naïve to think that social media does not play a role in litigation and the discovery process.  Ethical and Technological Considerations  When it comes to social media users, research has shown that there are stark differences in not only the generational usage of the various types of social media, but gender differences as well. It should be no surprise that age has an effect on usage. According to DataReportal, a website that provides global digital insights and trends, recent usage numbers show that everyone is embracing social media and all that it has to offer, with 84% of 18- to 29-year-olds and 45% of those aged 65 and older using social media. Additional research demonstrates that in the United States, females are more prevalent and account for 78% of social media users, whereas 66% of men use social media. Women were noted to use platforms such as Snapchat and Pinterest, and men tend to favor sites like YouTube and X(Twitter). According to a recent article by Exploding Topics, YouTube is the world’s most popular and widely used social media platform, followed by Facebook, Instagram, WeChat, Reddit, Messenger, TikTok, Telegram and Viber. These statistics can be a useful guide in directing you to where your target audience is spending their “down” time, leading to more pointed additional discovery requests. Due to the vast amount of information and data being generated by each user, it is important to cater your discovery requests to get as much information without going down the rabbit hole of what could be mountains of documentation and paperwork. Keeping up to date on the research related to ever-changing social media trends and the various demographics can help to narrowly tailor your discovery requests and yield pertinent information to defend your case. It is important to keep in mind that the Rules of Professional Conduct require attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (Pa. R.P.C. 1.1.). The obligation also exists for lawyers to ensure that preservation of such discoverable materials is maintained at the risk of spoliation issues arising. In 2014, the Pennsylvania Bar Association adopted the view of the Philadelphia Bar Association Professional Guidance Committee that a lawyer may advise a client to change the privacy settings on the client’s Facebook page, however, a lawyer “may not instruct or permit the client to delete/destroy a relevant photo, link, text, or other content, so that it no longer exists.” (Pa. Bar Ass’n Formal Op. 2014-300 [Sept. 2014]). The same principles still apply today, and lawyers are required to take affirmative steps to preserve social networking evidence and advise client(s) of the same.  Since social media discovery has to be maintained by the party, considerations can and should be given for an individual to preserve their own account. Many social media sites are now on the second and third generation of these platforms, and technological advances have allowed access to more features that may not have been feasible at their inception. For example, many platforms now allow individual users to download their entire account in just a few steps. Social media powerhouses such as Facebook, Instagram and TikTok all offer this feature. This process can be accomplished, in some circumstances, in a few “clicks” and arguably alleviates the “overly burdensome” obstacle of Pennsylvania Rule of Civil Procedure 4011.  What the Courts Have to Say  Under the general discovery principals in Pennsylvania, information contained on a litigant’s social media platforms is generally discoverable. In Pennsylvania, “…a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it related to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” (Pa.R.C.P. 4003.1.) Pennsylvania Rule of Civil Procedure 4009.1 explicitly permits the discovery of electronically stored information. This broad general principle of what is discoverable is limited by Pennsylvania Rule of Civil Procedure No. 4011, which states: “No discovery, including discovery of electronically stored information, shall be permitted which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; … or (e) would require the making of an unreasonable investigation by the deponent or any party or witness.”  Despite the popularity and extensive use of social media platforms, Pennsylvania Appellate Courts have not yet addressed the parameters of what is discoverable, and appellate review is scant. The trial courts, however, have seen their fair share of attempts to widen and/or limit the net of discoverable data. The court’s interpretations have been varied when it comes to how far litigants can go when delving into the world of social media discovery. Most courts have treated social media information as they would any other information sought in discovery. In Brogan v. Rosenn, Jenkins & Greenwald, LLP, the court stated:  Consistent with that firmly established discovery maxim, a party may obtain discovery of private Facebook posts, photographs and communications only if the electronically stored information is relevant, and the party must satisfy that relevancy requirement by showing that publically accessible information posted on the user’s Facebook page controverts or challenges the user’s claims or defenses in the pending litigation. To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle.  (C.C.P. Lackawanna April 22, 2013) (Nealon, J.). Moreover, in at least in one case, the court held that it was not necessary for a party to have a public profile before the opposing party is given access to the private portion of a party’s social media profile. In Arcq v. Fields, No. 11-4637 (C.C.P. Franklin Dec. 7, 2011) (Herman, J.), the defendants’ Motion to Compel information about the plaintiff’s social networking sites was denied due to the defendants’ failure to show any reasonable basis for believing access to the plaintiff’s profiles would yield any relevant information. Despite the denial of the motion, the court took a broad view of what the defendants had to show prior to being given access to the plaintiff’s private profile, stating: “[w]hile it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that defendant have some good faith belief that the private profile may contain information.” Arcq v. Fields, No. 11-4637 (C.C.P. Franklin Dec. 7, 2011) (Herman, J.).  Privacy Settings Privacy considerations are typically the main argument against disclosure of a litigant’s “private” social media information as based on the individual’s privacy rights. While the privacy argument has been rejected by Pennsylvania trial courts in some circumstances, most litigants will continue to push back when discovery seeks specific information that is contained on a litigant’s “private” social media platforms.  When discovery seeks information contained within a litigant’s private social media platforms, Pennsylvania trial level courts have implemented a balancing test that balances the need for relevant “private” social media information and the parties’ privacy concerns. In Hunter v. PRRC, Inc., 2013 WL 9917150 (York C. C. P. Nov. 4, 2013) (Linebaugh, J.), the court determined that a party making the request for social media information must make:  [A] threshold showing that otherwise available information leads to the reasonable probability that relevant information is contained with the private portions of the account. The hypothetical possibility that relevant information may exist in any account held privately is not sufficient to meet this showing. Actual facts must be shown…  A “threshold showing” is the standard for Pennsylvania Courts in deciding whether private social media information should be disclosed in discovery; however, the analysis does not end at this showing. In Trail v. Lesko, 2012 WL 2864004 (Allegheny C. C. P. July 3, 2012) (Wettick, J.), the court analyzed the approaches taken by nine earlier Pennsylvania trial courts and recognized that discovery of private social media information is inherently intrusive and, relying on Pa.R.C.P. No. 4011, noted a court should consider the “level of the intrusion and the potential value of the discovery to the party seeking discovery.” Most recently in Allen v. Sands Bethworks Gaming, LLC, 2018 WL 4278941 (Northampton C. C. P. Aug 6, 2018) (Dally, J.), the court found that in order to obtain the private portions of a litigant’s social media information, the requesting party must show discrepancies between the public portions of the litigant’s social media platforms and what the litigant is claiming in the lawsuit. These considerations, as to whether your case will cross the threshold, should be considered in any motion to compel. It is evident that social media discovery exploration is a necessary component to ensure that you are properly defending your clients. Preparing discovery that is geared toward the opposing party’s use of various social media platforms helps to maintain the most effective use of your and your client’s time. Understanding the court’s parameters of what is permissible and whether your case will meet the privacy threshold will help you successfully navigate the inevitable discovery disputes.     The Quarterly Dose – May 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved.