Tuesday, October 26, 2010

ARTICLE: The New Discovery Battlefield

The New Discovery Battlefield

Novel Jefferson County trial court decision opens door to discovery of social networking sites

Daniel E. Cummins

Pennsylvania Law Weekly // The Legal Intelligencer
October 26, 2010

There's a new discovery battlefield developing across the Pennsylvania legal landscape and the defense has taken the first hill.

With the ever-expanding reach of the Internet and the willingness of people using it to put more and more personal information on social networking sites, counsel on both sides of the bar have begun to utilize Google searches and social media sites to uncover information on potential jurors during voir dire.

More recently, another trend in personal injury litigation involves counsel turning their attention and focusing their discovery efforts on social networking sites, such as Facebook and MySpace, which can be gold mines of information on plaintiffs, defendants, and witnesses in the unguarded moments of their lives when they think no one is watching.

Litigators have used various maneuvers, both covert and overt, in an effort to access these social networking sites with varying degrees of success. As noted below, in a recent decision, President Judge John H. Foradora of the Jefferson County Common Pleas Court opened the door to direct discovery efforts in this regard by approving interrogatories and request for production calling for the production of information contained on social networking sites.

Covert Ops

Some attorneys have used covert ops to gain information on the opposing party or witnesses in the case, unbeknownst to opposing counsel, by going to the public Facebook and/or MySpace profiles of the other party or witness to gather what limited information may be available there.

However, in most cases, more useful information on these social networking sites may be on personal pages that can only be accessed with the permission of the owner of that particular social networking profile.

In this regard, the professional guidance committee of the Philadelphia Bar Association issued an opinion in March 2009, 2009-02, addressing the issue of whether or not it would be ethical for an attorney to not only have a third person, such as a private investigator, attempt to access a witness' (not a party plaintiff's) personal pages by attempting to "friend" the plaintiff and get permission to view the plaintiff's more detailed profile pages, but also use the information generated if access is granted.

In the ethical opinion, it was decided that the fact that the search of the site is conducted by a third party "does not insulate the [attorney] from ethical responsibility for the conduct." The opinion goes on to conclude that such actions by the attorney in procuring a third party to attempt to communicate with the witness and gain access to the witness' social networking sites in this context would violate Professional Rule of Responsibility 8.4 in that such conduct would be "deceptive" and would represent false statements of material fact to the witness in violation of Rule 4.1 as well.

In other words, if the witness knew the true purpose of the inquirer's intention to "friend" the witness, i.e., to gather information to impeach the witness, the witness might not grant access to his or her Facebook or MySpace page.

Presumably, the same rationale and conclusion would result if the factual scenario involved a plaintiff's networking sites.

The ethical opinion did not address the ability of an attorney to utilize any information gathered in this manner in contravention of the conclusions of this ethical opinion. Rather, the committee left that issue to be decided by the courts as a matter of substantive and evidentiary law.

Outflanking the Plaintiff

Another maneuver attempted by counsel to gain access to the information on parties or witnesses is to try to outflank opposing counsel's refusal to grant access to the information by serving a subpoena directly upon Facebook, MySpace, or other relevant networking sites.

A U.S. District Court in California recently addressed the validity of this discovery maneuver in the 2010 case of Crispin v. Christian Audigier, Inc . The Crispin court reviewed the protections provided by the Stored Communications Act, which was enacted in 1986 as part of the Electronic Communications Privacy Act. The Stored Communications Act prevents providers of communication services from divulging private communications to certain individuals and entities.

The court found that, under the Stored Communications Act, an owner of a social networking profile had standing to quash a subpoena seeking the production of personal information protected by the Act.

The court also found that since social networking sites, such as Facebook and MySpace, allow for electronic communications among parties, these sites were covered under the protections afforded by the Act against unwanted disclosures. As such the court granted the plaintiff's motion to quash those aspects of the subpoena that sought production of any private messages on those sites.

However, the Crispin court did not grant or deny the plaintiff's motion to quash the defendant's subpoena addressed to the production of Facebook wall postings or MySpace comments, but rather remanded the matter back to the federal district magistrate judge for a hearing to determine the privacy settings utilized by the plaintiff on those sites. Presumably, if the privacy settings the providers of the plaintiff's various networking sites were restrictive, it appears that the California federal court would be inclined to quash the subpoena.

A Direct Assault

In the novel Jefferson County case of McMillen v. Hummingbird Speedway Inc. , Foradora held earlier this year that where a person's social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

The McMillen case involved a plaintiff who filed suit to recover damages for personal injuries allegedly caused when a defendant rear-ended the plaintiff's vehicle during a cool down lap following a 2007 stock car race.

During discovery, defendant Hummingbird Speedway Inc., in its interrogatories, inquired if the plaintiff belonged to any social networking computer sites. The defendant also requested the name of the site, the plaintiff's user name, login name, and password.

In this case, the plaintiff disclosed that he belonged to Facebook and MySpace, but maintained that his user name and login name information were confidential and should not have to be provided.

In viewing the public portion of the plaintiff's Facebook page, the defendant noted comments evidencing that the plaintiff had gone on a fishing trip and had attended the Daytona 500 race in Florida.

When the plaintiff refused to fully respond to the written discovery requests, the defendant filed a motion to compel the discovery desired.

The trial court pointed to the general rule in Pennsylvania that a party may obtain discovery regarding any information that is relevant and not privileged. The plaintiffs requested the court to find the communications shared among one's private friends on a social networking site to be confidential and protected from disclosure. Foradora noted that no binding or persuasive authority was cited by the plaintiff to support this assertion.

Foradora noted that evidentiary privileges are not favored under Pennsylvania law and should be narrowly construed. The court found that the plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge also emphasized that these social networking websites themselves expressly advised the users of the sites of the possibility of the disclosure of the information posted on the sites.

Accordingly, the court found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the plaintiff's sites in McMillen was found to be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal of the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

As such, Foradora ordered the plaintiff to produce his Facebook and MySpace user names and passwords. The plaintiff was further ordered not to delete or alter any of the information on the accounts in the meantime.

It is noted, parenthetically, that a recent decision with the same result in favor of production of information in discovery was handed down in the Suffolk County, New York trial court level case of Romano v. Steelcase Inc. The court in that case noted last month that, where the publicly viewable portions of the plaintiff's Facebook and MySpace profiles contained pictures that contradicted the plaintiff's personal injury claims, that information is discoverable.

The rationale of the New York trial court judge's opinion, in part, was that precluding the defense from accessing such information would not only be violative of New York's liberal rules pertaining to pre-trial discovery, but would also serve to "condone [p]laintiff's attempt to hide relevant information behind self-regulated privacy settings."

The Truth Can Hurt

Ultimately this new discovery battlefield pits the privacy interests of a party or witness against the goal of civil trials of searching for the truth on the claims and defenses presented.

It is well settled that the purpose of the discovery rules in Pennsylvania is to prevent surprise and unfairness to the parties and to allow for a fair trial on the merits of the case presented. Generally, under these rules, discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the case at hand.

Doesn't it follow therefore that a personal injury plaintiff should be allowed to access a defendant's Facebook or MySpace pages where there may be commentary on those pages whereby the defendant admits fault for the accident?

Surely then, on the same token, wouldn't the overriding goal of jury trials of ascertaining the truth as to the extent of the plaintiff's claims of injury and disability also be furthered by the discovery and admission of post-accident pictures from a plaintiff's Facebook and MySpace profiles of a smiling plaintiff gaining air while barefoot waterskiing, triumphantly crossing the finish line at the end of a 5K race, or vacationing at Disney World? •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/. This article first appeared in the October 26, 2010 edition of the Pennsylvania Law Weekly, all rights protected, Incisive Media, 2010.

Anyone desiring a copy of the McMillen v. Hummingbird Speedway, Inc. case may contact me at dancummins@comcast.net.

Also, here is a link to a draft of an article sent to me by a Jaclyn Millner, Esquire, and a Gregory M. Duhl, Associate Professor of Law at William Mitchell College of Law in St. Paul, Minnesota, which article is set to be published in the Pace Law Review on the use of social networking evidence in insurance and workers' compensation litigation.


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