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Social media, law collide as postings become highly sought in court

| Thursday, Sept. 27, 2012, 10:06 a.m.

Private postings on Facebook and other social media sites have become a new frontier for lawyers hoping to dig up information favorable to their clients in court cases, experts say.

People might think that because a message is limited to a few friends that it's sacrosanct, but as a general rule, anything in the post could end up in court, said Rhonda Wasserman, a University of Pittsburgh law professor.

“The fact that it's invasive of one's privacy does not mean in and of itself that it's not discoverable,” she said.

Opposing sides in civil cases have long had access to public posts, but in an increasing number of cases, one or both sides are demanding access to the private conversations litigants have with family and friends.

In a recent case, U.S. District Judge Cathy Bissoon in Pittsburgh upheld a magistrate judge's ruling that denied such a motion by Festival Fun Parks LLC. The owner of Idlewild Park in Ligonier wanted either the complete postings or the Facebook login information for a Blairsville woman suing the company for injuries she suffered on the Wild Mouse roller coaster.

The company's attorney couldn't be reached for comment.

Festival Fun Parks claimed in court documents that it believed Darlene Bizich's private Facebook postings would show her injuries have not affected her ability to enjoy life.

Thomas Martin, one of Bizich's attorneys, said they opposed the company's request as a matter of principle.

“It's becoming a routine thing now for defendants to seek the passwords to Facebook to gain access to information that has nothing to do with the case,” he said.

He said he doesn't think there's anything in the postings that would damage his client's case, but he also doesn't think the company should be allowed to rummage through private conversations.

Bruce Boyden, an assistant law professor at Marquette University in Milwaukee, has tracked Facebook decisions nationally. He said state and federal judges haven't ruled consistently on the issue and he doesn't know of a federal appeals court that has taken up the question.

“It's actually the Pennsylvania state courts that have been paving the way, I believe, in the wrong direction,” he said.

In two cases from other parts of Pennsylvania, judges granted defendants access to plaintiffs' private postings because their public postings or pictures contradicted claims they were making in lawsuits.

The judges went too far, however, by giving the defendants access to all the private postings, Boyden said. He has not found a comparable ruling allowing one side unfettered access to the other sides' paper documents, he said.

“I think that's absolutely improper for the courts to do that,” he said. “I don't think it's justified.”

Wasserman said one of the strongest Pennsylvania decisions came from Allegheny County Senior Common Pleas Judge R. Stanton Wettick who, in July, denied Facebook motions by both sides in a motor vehicle accident case because neither party proved they were relevant.

Wettick in his ruling noted that no state appeals court has taken up the issue. Wasserman said the same is true for the 3rd U.S. Circuit Court of Appeals, whose area includes all federal courts in Pennsylvania, and the U.S. Supreme Court.

“I think this is an issue that's going to percolate in the courts for a period of time,” Wasserman said. “It's too soon to predict what the nature of that consensus will be.”

Brian Bowling is a staff writer for Trib Total Media. He can be reached at 412-325-4301 or bbowling@tribweb.com.

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