Discovery of Facebook information: judge provides helpful analysis for discovery, which is governed by Pa.R.C.P. Rule 4011. Courts must balance whether discovery causes "unreasonable" annoyance, embarrassment and oppression.

Pennsylvania Court of Common Pleas Judge Wettick has provided the public with a thoughtful overview and analysis of the discoverability of information on plaintiffs' and defendants' Facebook pages. After providing a review of judicial decisions in Pennsylvania and throughout the country that have addressed this issue, Judge Wettick provides us with a status of the law on this issue. Judge Wettick explains that, as a threshold matter, a party seeking discovery of restricted Facebook information must "articulate some facts that suggest relevant information may be contained within the non-public portions of the profile." From his perspective, "Courts have relied on information contained in the publicly available portions of the user's profile to form a basis for further discovery."

Judge Wettick held that discovery into a person's Facebook profile, when that party has not been “friended,” or posted the Facebook information so that it is available to the general public, is intrusive. Therefore, the court must determine under Pennsylvania Rule of Civil Procedure 4011(b) whether the discovery requested causes "unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party." (Emphasis added.) In this light, attorneys and investigators should establish information relevant to a claim by written discovery, deposition testimony or an examination of publicly displayed information on Facebook in order to gain access to critical and otherwise protected Facebook information.

Case Law Alert - 4th Qtr 2012