In previous posts, I have written about the ever-evolving status of Facebook discovery in Pennsylvania. To briefly summarize, Pennsylvania Courts have generally held that the party seeking discovery of Facebook contents must make a threshold showing of relevance that an individual’s Facebook account is likely to contain relevant information before conducting further discovery. Such a showing is most commonly made through the discovery of relevant information within an individual’s public Facebook profile. A recent decision out of the U.S. District Court for the Western District of Pennsylvania lends some clarity regarding the limits of Facebook discovery even after a threshold showing of relevance has been made.
In the case of In re Milo’s Kitchen Dog Treats, Civil Action No. 12-1011 (WD PA 2015), a class of Plaintiffs alleged that their dogs were harmed by treats manufactured by Milo’s. One such Plaintiff, Lisa Mazur, posted a Facebook entry on her public profile in which she allegedly blamed another manufacturer’s dog treat for the harm to her dog. Upon discovering this, Defendants sought further information from Mazur’s private Facebook profile.
Mazur proceeded to provide “648 pages of Facebook data” with all irrelevant information redacted. After receiving this information, Defendants filed a motion to compel, arguing that it was improper for Mazur to unilaterally decide what should be redacted. Defendants contended that after meeting the threshold relevancy requirement, they were entitled to unfettered access of Mazur’s Facebook account, including her username and password.
In a memorandum opinion, Magistrate Judge Maureen P. Kelly denied Defendants’ motion. In this, Judge Kelly writes:
[I]t appears that counsel for Plaintiff not only took pains to include even borderline entries and un-redacted certain data in an effort to show the absence of materiality, but he has represented, and the Court has no reason to doubt, that the redactions were made in good faith and that the information that remains redacted has nothing to do with the claims or defenses raised in this case.
This decision is particularly important because it is one of the few written decisions that attempt to address how Facebook discovery is to be conducted once a threshold showing of relevance has been met. Many attorneys seem to believe that once the relevancy threshold is met, they should be entitled to unfettered access to the profile, including username and password information.
Judge Kelly’s decision stands for the proposition that this is not the case. Instead, Plaintiff is entitled to conduct a good faith review of all private Facebook data and redact all irrelevant information.
For any further questions regarding this decision, or for legal advice, it is recommended you seek out experienced counsel.