Monday, May 23, 2011

Another Recent Decision on Social Media Discovery

Yesterday, I reported on the Bucks County social media decision of Piccolo v. Paterson in which the court ruled against discovery of information on a Plaintiff's social media sites.  Since hearing about that case, I came across an article publicizing another recent social media discovery case--this one out of Northumberland County in favor of allowing such discovery.

According to a May 23, 2011 article by Gina Passarella of the Legal Intelligencer, the seminal Jefferson County social media decision in the case of McMillen v. Hummingbird Speedway, Inc. was recently followed by Northumberland County Court of Common Pleas Judge Charles H. Saylor in the case of Zimmerman v. Weis Markets Inc.

In Zimmerman, the Plaintiff was suing his former employer for pain and suffering, scarring, and wage loss damages after he injured his leg in a forklift accident while working.

At his deposition, the Plaintiff testified that had not worn shorts since his accident because he was embarrassed by the scar on his leg from the accident. However, according to the court’s opinion, the Plaintiff was depicted in his public MySpace pictures wearing shorts with his scar visible. The Plaintiff also posted pictures of himself with his motorcycle and discussed riding motorcycles elsewhere on his social media sites.

The defense filed a motion to compel discovery of the private portions of Zimmerman's Facebook and MySpace pages. In the motion, the defense sought discovery of the Plaintiff’s passwords, user names and login names. Relying on the Jefferson County decision in McMillen v. Hummingbird Speedway, Inc. case, the defense argued there may be relevant information as to the Plaintiff's damages claims on the private portions of those pages.

The Plaintiff asserted that his privacy interests outweigh the need to obtain this discovery material from the social networking sites. As an alternative argument, the Plaintiff also requested that the court conduct an in camera review of the Plaintiff’s sites to determine what, if any, information should be produced in discovery.

Judge Saylor of the Northumberland County Court of Common Pleas rejected the request for an in camera review of the information as creating an undue burden on the court system in this emerging area of the law.

In Zimmerman, Judge Saylor also decided to follow the ruling in McMillen and wrote, “This court agrees with the rationale of the opinion in McMillen, authorizing access for the reasons that 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."

As such, the defense motion to compel discovery of the Plaintiff’s social networking sites was granted in the Northumberland case of Zimmerman v. Weis Markets, Inc.

Anyone desiring a copy of the decisions in the Piccolo case and the Zimmerman case may contact me at dancummins@comcast.net.

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