Tuesday, December 4, 2012

Another Facebook Discovery Decision

In the Indiana County case of 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.

According to the Opinion, the Plaintiff alleged injuries to her head, neck, and back as a result of the motor vehicle accident all of which injuries were alleged to be, or possibly be, serious and permanent in nature.

During discovery, it was determined that the Plaintiff had Facebook, myYearbook, and MySpace accounts, and that each account was active following the accident.  When Plaintiff refused the defense's requested access to the private portions of the Plaintiff's social networking accounts by way of the production of the Plaintiff's user names and passwords, a motion to compel was filed.

The court noted that, in his motion, the Defendant asserted that the front page of the Plaintiff's myYearbook account contained a reference to the Plaintiff's plan to participate in a Zumba exercise class.

In his October 10, 2012 Opinion, Judge Bianco noted that, as of that date [and as of today's date, I note], there has been no appellate decision on this particular issue.  As such, Judge Bianco noted that a number of trial court decisions from around the state have addressed this issue.  In his Opinion, Judge Bianco specifically referenced the Zimmerman v. Weis Markets, Inc. trial court decision out of Northumberland County.

Judge Bianco noted that, by virtue of her allegations in her Complaint in this personal injury matter, the Plaintiff had placed her physical condition at issue.  Accordingly, the court held that the Defendant was entitled to conduct discovery in an effort to obtain information relevant and related to the cause of action stated, which according to Judge Bianco, in today's society may include access to a party's social networking sites.

Where, as here, the defense had made a threshold showing (i.e. the reference to attending Zumba class in the public portions of the Plaintiff's social media sites), the court found that it was "reasonable to infer that the non-public portion of the Plaintiff's account may contain additional relevant evidence."

The court in this case of Simms rejected the Plaintiff's expectation of privacy argument by noting that "the purpose of social networking sites is to share information."  The court ruled that a "Plaintiff cannot maintain a reasonable expectation of privacy  when she created the account and voluntarily posted this information, knowing that the information could become publicly available."

Accordingly, the court held that the Defendant had made a proper threshold showing that access to the Plaintiff's myYearbook account could lead to the discovery of additional relevant information.  As such, access was allowed to this particular account.  The court ordered the parties to meet within 60 days at which meeting the Plaintiff would access her myYearbook account in the presence of defense counsel for a review of the content of the account.

Judge Bianco denied the Defendant's motion to compel access to the Plaintiff's Facebook and MySpace pages on account of the fact that the Defendant had not met the threshold showing for those accounts.  The court noted that, if such a threshold showing was made by the Defendant to support a request for access to the non-public portions of those other accounts, the motion to compel would then be granted.

Anyone wishing to review this Opinion in the Indiana County case of Simms v. Lewis may click HERE.

REMEMBER:  The FACEBOOK DISCOVERY SCORECARD can always be accessed down on the right hand column of Tort Talk at www.TortTalk.com.  Also, when you get to that Scorecard, you can click on the case names to access the actual opinions/orders online.

I send thanks to Attorney Mathew G. Simon of the Indiana, Pennsylvania law firm of Simpson, Kablack & Bell, LLC.

Source of imagewww.mindjumpers.com

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