A Pennsylvania state court judge recently wrote an extremely useful court opinion for anyone looking for case law regarding the production of Facebook accounts and social media. Although the state court opinion would only have mandatory authority under PA law, this case could be useful to anyone researching social media as part of ESI production. One of the interesting aspects of emerging electronic discovery case law is many courts’ willingness to look to other jurisdictions when deciding issues of first impression.
In Hoy v. Holmes, 107 SCH.L.R.19 (Pa.D. 2013), the issue before the court was whether the defendant in a personal injury case had made a sufficient evidentiary showing to receive electronic data regarding the plaintiffs’ private social media accounts. The emerging consensus across the country is that a litigant must first demonstrate that the public portion of the account supports the argument that more relevant information is likely to be revealed in the private portion.
What makes this case opinion such a great resource for plaintiff trial attorneys is it cites seven separate cases on this issue and the outcomes of each. The opinion also discusses a law article regarding the relatively new issue of Facebook accounts in modern civil litigation.
The defendant in this case probably could have use the information in the opinion himself, as he failed to even attempt to make the requisite threshold showing to gain access to the private Facebook account. Perhaps that’s why the court drafted such a comprehensive and instructive opinion? After schooling the defendant and denying the request, the court did keep the door open: it entered the order without prejudice to give the defendant another chance.
eDiscovery extra: Plaintiffs in civil litigation should only post information to Facebook that they would not mind having the whole world see!