Sunday, May 22, 2011

Latest Trial Court Decision on Social Media Discovery

According to a May 17, 2011 article by Gina Passarella of the Pennsylvania Law Weekly, Judge Albert J. Cepparulo issued a one paragraph Order in the Bucks County case of Piccolo v. Paterson, in which he denied a Defendant’s Motion to Compel the Plaintiff to allow the defense access to the Plaintiff’s Facebook page.

According to the article, the Plaintiff in Piccolo was injured as a result of a motor vehicle accident during which she was hit in the face with the airbag and suffered significant lacerations to her lip and chin. The Plaintiff required 95 stitches to her face in the emergency room on the day of the accident and then had scar revision surgery thereafter along with several laser treatments to reduce the scarring. The court filings contained allegations that the Plaintiff was permanently scarred on her face.

The article notes that, following the accident, the Plaintiff allowed the defense carrier to come to her home about a year after the accident and take a number of photographs of her face.

During the course of this litigation, the Plaintiff had also provided the defense with 20 photos of her face that were taken about a week following the accident. Also provided were five photos from the months just before the accident for comparison purposes.

The article also states that the Plaintiff additionally allowed the defense to take even more pictures at the Plaintiff’s September of 2010 deposition.

The Defendants then wanted access to other photos of the Plaintiff that the Plaintiff had posted of herself on Facebook. At her deposition, the Plaintiff was asked about the Facebook account and defense counsel inquired whether could send a “neutral friend request” to the Plaintiff so that he could then be granted access to the Plaintiff's Facebook postings that the Plaintiff testified she made everyday.

The Plaintiff denied this request but, according to the defense filings on the Motion to Compel, indicated that at the deposition that her status updates and pictures were available for public viewing and that she would not make them private.

However, according to the defense filings, when the defense went to the Plaintiff’s Facebook page, those postings were private and only available to the Plaintiff’s friends. This prompted the defense attorney to follow up with a letter to the Plaintiff’s attorney requesting the Plaintiff to accept a friend request from the defense. When that was denied, the Motion to Compel followed.

In support of its argument for access to the Facebook page, the defense cited the September of 2010 Jefferson County trial court Opinion of McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), in which that Court held that Facebook postings were discoverable and ordered the Plaintiff to provide his username and password to the defense.

In opposition to the Motion to Compel, the Plaintiffs argued that, contrary to the situattion in the McMillen case, the defense counsel had only inquired about pictures posted on Facebook and not any textual postings. The Plaintiffs also argued that the defense had been already provided with as complete a photographic record of a comparison of the Plaintiff’s pre-accident condition verses her post-accident condition as the defense could reasonably have a right to expect under the circumstances presented.

After hearing argument on the issue, Judge Cepparulo issued his one paragraph Order in Piccolo denying the Motion to Compel. According to the article, it did not appear that the defense intended to appeal the decision in Piccolo.

It appears from the article that the focus of the Plaintiff's injuries in Piccolo were on her facial scarring injuries as opposed to musculoskeletal injuries and the impact of those injuries on the Plaintiff's activities of daily living.  As set forth in the article on the case, the Judge in Piccolo may have agreed with the Plaintiff's contention that the defense request for access for even more photos of the Plaintiff's face from her Facebook page was overkill given the number of pre-accident and post-accident photos that had been previously supplied.

This is to be contrasted from the situation in McMillen v. Hummingbird Speedway, Inc. in where there was reason to believe that the Plaintiff's Facebook page may offer relevant evidence that would serve to contradict the Plaintiff's contentions of limitation in his activities of daily living as a result of his accident-related injuries.

The Court in McMillen 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 may 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.

President Judge Foradora held 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.  As such, Judge 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.


As written discovery requests and deposition questions pertaining to a party's social networking activities are becoming the norm, it can be expected that more decisions will be generated on this topic.

Also, as to other litigation strategies in this regard, I have seen recommendations that counsel secure a "litigation hold" court order against an opposing party in a lawsuit in order to prevent that other party from deleting anything from his or her Facebook page during the course of a litigation.



For more information on the McMillen v. Hummingbird Speedway case, I offer the following links to previous posts here on Tort Talk, one of which is to a reprinting of my Pennsylvania Law Weekly article on the topic:

http://www.torttalk.com/2010/10/new-discovery-battlefield-social.html


http://www.torttalk.com/2010/10/article-new-discovery-battlefield.html



Anyone desiring a copy of the McMillen v. Hummingbird Speedway, Inc. decision may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and providing the PICS number noted above.  As for a copy of the Piccolo court order, the same can presumably be secured from the Bucks County Court of Common Pleas.

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