DANIEL E. CUMMINS, ESQ. of FOLEY, COMERFORD & CUMMINS
firm website: www.foleycomerfordcumminslaw.com
[UPDATED March 4, 2017]
DANIEL E. CUMMINS, ESQUIRE is an insurance defense attorney with the Scranton, Pennsylvania law firm of FOLEY, COMERFORD & CUMMINS. In addition to being a civil litigator, he also writes a regular column for the Pennsylvania Law Weekly on important cases and emerging trends under Pennsylvania law. He is also the author of the annual Supplement for The Pennsylvania Trial Advocacy Handbook.
In 2014, Attorney Cummins was selected as the "Distinguished Defense Counsel of the Year" by the Pennsylvania Defense Institute.
One trending issue in Pennsylvania civil litigation has to do with Social Media Discovery. Here is a LINK to my ONLINE VIDEO on this topic with Ben Present, a reporter with the Pennsylvania Law Weekly.
Here's an updated list of the Facebook or Social Media Discovery cases uncovered to date, broken down by county-to-county decisions.
I have created a link on the right hand column of Tort Talk (http://www.torttalk.com/) entitled "Facebook Discovery Scorecard" that will be continually updated. The Scorecard will remain up on the blog for you to click whenever you need this information. Just click on the date below "Facebook Discovery Scorecard."
The below list cases may not be exhaustive and there may be other decisions out there that I am not aware of at present. As such, it is recommended that you conduct your own additional research on the issue.
In the absence of appellate guidance, it is important that these decisions be publicized so that a consistent common law in this novel area can be developed. I would appreciate it if you could please advise me of any new cases that you may come across on this topic so that those decisions can be highlighted here.
I am in possession of a copy of most of the decisions noted below. If you desire a copy of any of the following cases, please contact me at email@example.com. Wherever possible, I have also created a link to certain decisions below that are generally available online.
U.S. Federal Court for Middle District of Pennsylvania
Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D.Pa. June 22, 2011 Carlson, M.J.)(In Opinion by Federal Middle District Magistrate Judge, Court grants requests of Defendant and Plaintiff for in camera review of Plaintiff's private Facebook page; court picks and chooses what is to be disclosed).
U.S. Federal Court for Western District of Pennsylvania
Ogden v. All-State Career School, 299 F.R.D. 446 (W.D. Pa. 2014 Cercone, J.)(Limited Facebook discovery on Plaintiff allowed).
Largent v. Reed, 2009 – Civil – 1823 (C.P. Franklin Co. Nov. 7, 2011 Walsh, J.)(In thorough Opinion, Court outlines why Facebook discovery should be allowed. Plaintiff's claim of privilege rejected. Court limits defense access to Facebook page for 21 days after which Plaintiff was permitted to change login info.). But see Franklin County case below where discovery not allowed.
Simms v. Lewis, 2012 WL 6755098, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case; discovery granted where predicate showing that private pages of one site may generate relevant information, but denied as to other sites because defendant did not make predicate showing with respect to those sites.)
McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.)(In what appears to be the first Pennsylvania decision on the issue, court holds, in a detailed decision, that Facebook postings were discoverable and ordered the Plaintiff to provide his username and password to the defense.).
Perrone v. Lancaster Regional Medical Center, No. CI -11-14933 (C.P. Lanc. Co. 2013 Cullen, J.),(Judge James P. Cullen crafted a novel method of handling a Facebook Discovery dispute in a civil litigation personal injury case by ordering the parties to hire a neutral forensic computer expert to determine whether photos and video on Plaintiff's Facebook page were posted before or after subject slip and fall incident in order to determine whether or not such information was discoverable.).
Mazzarella v. Mount Airy Casino Resort, No. 1798 Civil 2009 (C.P. Monroe Co. Nov. 7, 2012 Williamson, J.)(Judge David J. Williamson of the Monroe County Court of Common Pleas granted a defendant's motion to compel the plaintiff to allow for social media discovery in a premises liability slip and fall case.).
Gallagher v. Urbanovich, No. 2010 - 33418 (C.P. Mont. Co. Feb. 27, 2012 Carpenter, J.)(JudgeWilliam R. Carpenter of the Montgomery County Court of Common Pleas granted a Plaintiff's Motion to Compel a Defendant to produce his user name and password for the Defendant's Facebook page. The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff. While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.).
Zimmerman v. Weis Markets, Inc., No. Civil - 2009 - 1535 (C.P. Northumberland Co. May 19, 2011 Saylor, J.)(In an Opinion, court grants defense motion to compel but, in a footnote, cautions that Facebook discovery not automatically allowed--threshold showing must first be made by party seeking discovery that private pages of opposing party's Facebook page may have information relevant to case.).
Prescott v. Willis, No. 2012-Civil-2207 (C.P. Wash. Co.
DISCOVERY NOT ALLOWED (OR LIMITED)
U.S. Federal Court for the Western District of Pennsylvania
In re Milo's Kitchen Dog Treats Consolidated Cases, 307 F.R.D. 177, No. 12-1011 (W.D.Pa April 14, 2015 Kelly, M.J.).( Federal Magistrate Judge denied a Defendant's motion to compel unfettered and complete access of the Plaintiff's profile page along with a disclosure of the Plaintiff's user name and password in a case where plaintiff had already disclosed many of the private pages of her Facebook profile.).
Trail v. Lesko, No. GD-10-017249 (C.P. Alleg. Co. July 3, 2012 Wettick, J)(In a detailed opinion, Judge Wettick denied both a Plaintiff's and a Defendant's motions to compel access to the opposing party's Facebook pages, finding the requests were unreasonably intrusive under Pa.R.C.P. 4011 in that, in this particular case, "the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case.").
Piccolo v. Paterson,, 2009 - Civil - 04979 (C.P. Bucks Co. May 5, 2011 Cepparulo, J.)(In a one line Order, court denies defense motion to compel discovery of Plaintiff's Facebook pages in a facial scarring personal injury case. Defense had requested that the court order the Plaintiff to accept a "friend" request from defense counsel. Defense wanted to secure other photos of Plaintiff via Facebook pages; Plaintiff argued that defense had already secured numerous pre-accident and post-accident photos of Plaintiff and that this motion to compel was essentially overkill on the issue.).
Arcq v. Fields, No. 2008 – Civil – 2430 (C.P. Franklin Co. Dec. 7, 2011 Herman, J.)(In Opinion, court denies motion to compel access to Plaintiff's private Facebook pages where Defendant did not first offer threshold showing that Plaintiff even had a Facebook page or that the Plaintiff's private Facebook pages may reveal evidence that information relevant to the Plaintiff's claims of injury and disability would be discovered on the private pages). See also Franklin County case above where discovery is allowed.
Simms v. Lewis, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case; discovery granted where predicate showing that private pages of one site may generate relevant information, but denied as to other sites because defendant did not make predicate showing with respect to those sites.)
Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lackawanna County 2013 Nealon, J.)(In a detailed Opinion, Judge Nealon denies motion to compel disclosure of user name and password as Plaintiff had not established that relevant information would be found on private pages. Judge Nealon also ruled that a demand to produce the user name and password to a person's social media sites was not a discovery request tailored with reasonable particularity but instead represented an effort at an impermissible fishing expedition.).
Commonwealth v. Pal, No. 13-CR-2269, 2014 WL 1042276 (C.P. Lacka. Co. March 14, 2014)(Judge Nealon utilizes civil litigation Facebook Discovery decisions, at pgs. 27-34 of Opinion, to address issues raised with search warrant relative to Facebook information.)
Kalinowski v. Kirschenheiter and National Indemn. Co., No. 6779 of 2010 (C.P. Luz. Co. 2011 Van Jura, J.)(In an Order, Court denied motion to compel discovery of private pages of Plaintiff's Facebook page where Plaintiff had argued that (1) defense was only seeking to embarrass Plaintiff, (2) that defense had ample access to information on public pages of sites, and (3) where Plaintiff contended that private pages related in part to Plaintiff's business and that no wage loss claim was being presented. Court denied motion "without prejudice," apparently leaving the door open for the issue to be revisited later)(For this one, I have copies of the Court's order and some of the filings by the parties).
Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila Dec. 13, 2011 Manfredi, J.)(In a one line Order, court denies motion to compel access to Plaintiff's private Facebook pages where Defendant did not first show that the Plaintiff's deposition testimony and/or public pages of the Plaintiff's Facebook pages revealed evidence that information relevant to the Plaintiff's claims of injury and disability would be discovered on the private pages)(For this one, I have copies of the defense motion, plaintiff's response, and the court's Order).
Hoy v. Holmes, No. S-57-12, 107 Sch.L.R. 19 (C.P. Schuylkill Co. 2013 Domalakes, J.)(In an Opinion, Judge John E. Domalakes denied a Defendant's Motion to Compel access to a Plaintiff's social media sites, including Facebook, in a motor vehicle accident case where no factual predicate shown that relevant information may be discovered on private pages.).
Hunter v. PRRC, Inc., No. 2010-SU-3400-71 (C.P. York Linebaugh, P.J. )(President Judge Stephen P. Linebaugh ruled that a defendant must meet a threshold showing of relevant information on a Plaintiff's public social media/Facebook pages before access to the private pages of the site would be allowed. There must be a showing of a reasonable probability that relevant information will be also found on the private pages of the site. The court also noted that a Plaintiff also retained the right to request a protective order if the allowance of the discovery would cause unreasonable annoyance, embarrassment, etc. under Pa.R.C.P. 4012. Court denies motion after finding defense did not make required threshold showing.).
To review blog posts on these cases, as well as other related Social Networking litigation issues, click here.
To review a form Motion, Brief, and proposed Order I created on a Motion to Compel a Plaintiff to Produce his Facebook login information (names have been changed in the documents to protect privacy of parties), click here.
TIMING OF PRODUCTION OF SOCIAL MEDIA DISCOVERY
Appleby v. Erie Ins. Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, 2016 Dowling, J.)(Court grants Plaintiff's motion to compel and orders Defendant to produce results of social media discovery on the Plaintiff prior to Plaintiff's deposition. The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.)
Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, 2016 Bratton, J.)(Court grants Plaintiff's motion to compel and orders Defendant to produce results of social media discovery on the Plaintiff prior to Plaintiff's deposition. The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.)
Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, 2016 Dowling, J.).(Court granted Plaintiff's motion to compel and ordered the defendants to provide all social media research or investigation including Facebook, Linkedln, Twitter, You Tube, Instagram,Tumblr or any other similar research. The defendants' objection that this investigation is the same as surveillance and should not be produced until after plaintiff's deposition was overruled. The defense objection that it was work product was also overruled. In its Order the court did also hold that the defense did not need to produce video surveillance completed on the Plaintiff prior to her deposition.)
ADMISSIBILITY OF SOCIAL MEDIA DISCOVERY RESULTS AT TRIAL
Federal Western District Court
Newill v. Cambpell Transp. Co., No. 2: 2012-CV-1344, 2015 U.S. Dist Lexis 4350 (W.D. Pa. 2015 McVerry, J.)(Court reviewed a Plaintiff's motion in limine to preclude the Defendant from introducing several of the Plaintiff's Facebook posts into evidence in a personal injury matter on the basis they were irrelevant, unfairly prejudicial, and potentially embarrassing. Facebook posts, which showed allegedly injured Plaintiff engaged in a variety of physical activities found relevant and admissible; that the posts may be embarrassing to Plaintiff found not to be grounds to preclude the evidence.)