Tuesday, June 7, 2011

Article on Discovery of Social Media Information

Tort Talkers may recall that I recently wrote on the first social media discovery decision in Pennsylvania in the McMillen v. Hummingbird Speedway Inc. case out of Jefferson County.  Here's the link to that post:   http://www.torttalk.com/2010/10/article-new-discovery-battlefield.html.   

Below is my recent article from last week's Pennsylvania Law Weekly providing an update on the Pennsylvania trial court decisions that have come down on this issue since.  Anyone needing a copy of the Pennsylvania decisions referenced may contact me at dancummins@comcast.net.


Civil Practice



To Friend or Not to Friend?
Trial courts split on how to handle social media discovery requests

by

Daniel E. Cummins


The Legal Intelligencer/Pennsylvania Law Weekly


May 31, 2011

An emerging issue in Pennsylvania civil litigation personal injury matters is the extent to which one party may gain access to information on an opposing party's social networking site such as Facebook or MySpace.

On the plaintiff's side, an argument can be made that postings on such sites are protected by expectations of privacy. On the defense side, it is asserted that such postings are made with the knowledge that they may not necessarily be private and also that the allowance of such discovery would further the overriding goal of civil trials of searching for the truth on the claims and defenses presented.

A Decision Against Disclosure

According to a May 17 article by Gina Passarella in Pennsylvania Law Weekly , Bucks County Common Pleas Court Judge Albert J. Cepparulo recently issued a one paragraph order in 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. According to the court filings, 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.

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

In Piccolo, the defendants 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 2010 Jefferson County trial court opinion of McMillen v. Hummingbird Speedway Inc., 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 situation 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 already been provided with as complete a photographic record of a comparison of the plaintiff's pre-accident condition versus her post-accident condition as the defense could reasonably have a right to expect under the circumstances presented.

After hearing argument on the issue, 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.

A Decision In Favor of Disclosure

This is to be contrasted from the situation in McMillen where there was reason to believe that the plaintiff's Facebook page might 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.

McMillen 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, the 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 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 pertaining to information on social networking sites of the plaintiff, the defendant filed a motion to compel the discovery desired.

The trial court noted 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, therefore, protect it from disclosure. Jefferson County Common Pleas Court President Judge John H. Foradora noted that no binding or persuasive authority was cited by the plaintiff.

Foradora additionally 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 emphasized in his opinion that these communication websites expressly noted the possibility of disclosure.

The court in McMillen therefore 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 pages may be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal — the search for truth in civil trials — should prevail in favor of the disclosure of information that may not have otherwise been known.

Accordingly, 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, 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.

McMillen Followed

According to a May 24 article by Passarella in The Legal Intelligencer , the Jefferson County decision in McMillen was recently followed by Northumberland County Common Pleas Court 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 he 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, 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.

Saylor 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.

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.

Social Networking Litigation Strategies

Written discovery requests and deposition questions pertaining to a party's social networking activities are becoming the norm in Pennsylvania civil litigation matters. It can be expected that more and more trial court decisions will be generated on this topic to further clarify the parameters of this type of discovery. As can be seen above, the current trend is in favor of the discovery of such information.

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 any postings that post-date the subject accident from his or her Facebook page during the pendency of a litigation.

Should it be determined that a party has deleted or changed information on a social networking site after the institution of a lawsuit, it may be that spoliation of evidence issues may also arise. In such scenarios, it may come to be that the party seeking the deleted information may be entitled to an adverse •  inference jury instruction at trial.

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 www.torttalk.com.

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