In order to verify the extent of a woman's injuries stemming from an auto accident, the judge presiding over her lawsuit has ordered that she give the defendant access to her Instagram account.

Monroe County Court of Common Pleas Judge David J. Williamson granted defendant Joseph Flanagan's motion to compel discovery in plaintiff Catherine Kelter's injury lawsuit.

Williamson acknowledged that discovery issues involving the intersection of social media and privacy concerns are becoming more commonplace in Pennsylvania, yet the law remains vague.

“Use of a party's social networking account in litigation is becoming a more regular issue, even though there is limited authority. However, as we have held before, social networking accounts can be discoverable, if it appears likely that they contain information that could be relevant. Various other Pennsylvania Common Pleas Courts have agreed,” Williamson said. “Arguably, there does not even appear to be an expectation of privacy on social media as it relates to litigation because the account holder is sharing information with others in a public or quasi-public domain.”

According to Williamson's opinion, Kelter testified she did not maintain social media accounts, but when presented with contrary evidence, admitted she had an Instagram page and said she misunderstood the question.

Defense counsel showed posts from Kelter's publicly viewable Instagram account showing what appeared to be photos of her engaged in vigorous physical activity shortly after the accident.

“The posts included reference to shoveling snow and going to the gym after the
accident, even though she claimed injuries that might preclude her from such activity. This is
certainly relevant information about plaintiff' s injuries, the extent of such injuries, and her
rehabilitation,” Williamson said.

Flanagan's lawyer asked for further discovery on the account to see what else could be found, but Kelter declined to provide it. Kelter claimed the defendant already had access to her pictures, arguing that Instagram allows users to have either an all public or all private account.

However, Williamson noted that there was an exception: A user could always choose to switch to all private access posts, and information would no longer be available to Flanagan.

“The facts of this case show there may be other relevant information about the plaintiff's injuries in her Instagram account. The fact that information was available on a public access basis for a period of time, does not eliminate the need for full access to the account by the
defendant,” Williamson said. “Plaintiff's own posts presented to her at her deposition call into question the extent of her injuries, making the information relevant. The fact that her account may have been public access only for a period of time does not mean there is no possibility of other relevant information.”

He continued, “There may have been information the defendant missed, and, as alleged, the
account may have been converted to a private access only account. Plaintiff could still be
posting on that account about her activities that could be relevant to the extent of her injuries.
Plaintiff has chosen to interact and share her personal life with others through social media.”

Marc Simon of Simon & Simon represents the plaintiff and Frank Baker of Marshall Dennehey Warner Coleman & Goggin represents the defendant.

Simon said he always advises his clients to avoid posting on social media.

“In this case the client decided to have her social media set on public for the whole world to see. However, she did change her status to private on her own during the litigation,” Simon said in an email. “We disagree with the ruling and believe that once the client or anyone agrees to go private, then the ability for defense counsel or anyone to enter that client's private space should end.”

He added, “The pictures that were on display when the page was public are fair game, but anything added to the page after the client elects to take the page private should be off limits.”

Baker called the decision a “balanced” approach to social media discovery.

“Judge Williamson's opinion is significant in that it further refines the circumstances in which a party may be compelled to provide opposing counsel with access to his/her social media information,” Baker said in an email. “The order accompanying the opinion instructs that the plaintiff 'shall not remove or delete any content from said account' and instructs that defense counsel 'shall not share this information with anyone not related to the case.'”