Some Things Are Better Left Unposted: Even “Private” Facebook Postings Can Be Discoverable

In the case of Perrone v. Rose City HMA, LLC, a trial judge in Pennsylvania ordered the plaintiff in a personal injury suit to provide the defendants with access to her private Facebook page. The Plaintiff, Grace Perrone, brought a personal injury action against the Lancaster Regional Medical Center in 2010 after sustaining a fall in that allegedly left her with serious physical impediments. In her complaint, Perrone claims that as a result of the fall, she is unable to perform normal daily activities such as sewing, knitting, gardening, bicycling, or even walking.

During settlement negotiations, the Defendants brought forth photographs from Perrone’s public Facebook account showing her performing various activities that are inconsistent with her alleged injuries. Perrone’s Facebook indicated that these pictures had been posted a few weeks after she allegedly sustained her injuries. Perrone argued that although she did post those pictures after her accident, they were taken prior to her fall. In their motion to compel, Defendants contended that because the amount of snow depicted in the photographs correlated to heavy snowfalls in the area around the time the pictures were posted, these pictures could not have been taken prior to Perrone’s fall. Defendants further argued that prior to Perrone’s fall, the last such snowfalls in the area had been in 2003.

The judge ordered that a neutral forensic specialist analyze the relevant content in Perrone’s computer, that Perrone give the specialist her Facebook username and password in order to download relevant content from her account, and that the specialist identify any “photographs of snow and references of snow in any emails and any photographs of . . . Perrone, engaged in physical activity” for the relevant time period.

The judge’s order acknowledges the competing interests of justice and privacy in discovery matters. On the one hand, the Defendants made a convincing argument that based upon the pictures posted on Perrone’s public Facebook pages, it was likely that her private pages contained relevant information that was essential to their defense, but on the other hand, Perrone had a reasonable expectation that her private Facebook posts would remain private. By ordering that only a neutral specialist have access to Perrone’s Facebook account and the contents of her computer, the judge tried to reconcile these competing interests. However, these protections probably offer little consolation to Perrone, whose personal injury claim has likely been jeopardized by these postings.

For more on this case, click here.

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