In 2007, Bill R. McMillen, Sr., was rear-ended by Defendant Wolfe during a cool down lap in a stock car race. He later filed suit to recover damages for the following allegedly sustained injuries: possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.

In 2010, after viewing the part of plaintiff’s Facebook account that was available to the public, Defendant Hummingbird filed for an order compelling the plaintiff to disclose his Facebook and MySpace user names and passwords. This request was based on public comments regarding the plaintiff’s fishing trips and trip to the Daytona 500. The defendants wanted to “determine whether or not plaintiff [had] made any other comments which impeach and contradict his disability and damages claims,” or more plainly stated: “we want to make sure this dude isn’t lying.”

Pennsylvania has broad discovery rules with few privileges offered, and “as long as it is relevant to the litigation, whether directly or peripherally, a party may obtain discovery regarding any unprivileged matter.” The court stated that “as a practical matter, that means that nearly any relevant materials are discoverable.”

The plaintiff asked the court to recognize personal communications between friends on social networking sites (such as private message threads on Facebook) as confidential, so that he would not have to give the defendant access to his accounts. The court stated that “No ‘social network site privilege’ has been adopted by our legislature or our appellate courts.”

The court went on to cite Matter of Adoption of Embick, 351 Pa. Super. 491, 506 A.2d 455, 461 (Pa. Super. 1986), (citing 8 J. Wigmore, Evidence, § 2285 (McNaughton’s rev. Ed. 1961)), stating that a new privilege should not be recognized unless the claimant can establish four things:

(1) that his communications originated in the confidence that they would not be disclosed

(2) that the element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties;

(3) community agreement that the relationship must be sedulously fostered;

(4) that the injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation.

The court determined that the plaintiff did not meet these criteria and further went on to cite the privacy disclosure policies for both Facebook and MySpace. The court noted that both websites’ policies “should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else.”

The court stated that “the complete access afforded to the Facebook and MySpace operators defeats” the plaintiff’s argument that the private communications were actually confidential. The court also noted that communications witnessed by third parties are not normally privileged information for purposes of discovery; naturally, neither would third party-accessible communications on sites like Facebook or MySpace.

The court concluded by stating that if social networking sites contained information that was relevant to the case, access should be “freely granted” during discovery. The court further ordered that the defendant could not alter or delete existing information on either his Facebook or MySpace accounts.