In Zimmerman v. Weis Markets, Judge Saylor of the Northumberland County Court of Common Pleas ordered plaintiff to reveal passwords to his MySpace and Facebook accounts. Plaintiff sought compensation for injuries he sustained while operating a fork-lift at the Weis Markets’ warehouse. Counsel for the defendant had viewed the public portion of his Facebook page where he was shown wearing shorts after having sustained his injuries. Plaintiff had testified he never wore shorts because he was embarrassed by the scar from the surgery he had. Citing McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Jefferson Co. Com.Pl. 2010), Judge Saylor ordered plaintiff reveal his passwords, stating “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”
This decision is, of course, important for lawyers in pursuing and defending personal injury actions. However, it could also have implications in legal malpractice actions. There is nothing that would prevent a plaintiff in a legal malpractice action from using this opinion to gain access to an attorney’s Facebook page or other social media website. Most lawyers are cognizant enough to avoid posting any sensitive information where it might be publicly available, but when it is password protected they often feel a certain impunity. Remember, the nasty things you have to say about other counsel, opposing parties, and/or judges will be subject to discovery if a legal malpractice or wrongful use of civil proceedings action arises out of your case. The appropriate use of social media sites is an important question for every professional, not just lawyers. The best practice is to not reduce anything to writing that you would not mind seeing blown up as evidence in a trial against you.