Tuesday, April 23, 2013

Judge Nealon of Lackawanna County Addresses Facebook Discovery Issue



Judge Terrence R. Nealon of the Lackwanna County Court of Common Pleas has weighed in on the Facebook Discovery question as a case of first impression in the matter of Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lackawanna County 2013 Nealon, J.).

In this matter, the Plaintiff was seeking the Facebook login name, user name, and password of a deponent witness who happened to be a paralegal in a defendant insurance company's claims department.  According to the opinion another insurance company witness testified that he had communicated via Facebook with that paralegal regarding depositions in the matter.  The carrier refused to release the paralegal's login info, user name, or password.  The Plaintiff filed a discovery motion to compel that information.

Judge Terrence R. Nealon
Lackawanna County
In a thorough and detailed Opinion outlining the current status of the law on Facebook Discovery (and in which the court cited to Tort Talk in footnote three!), Judge Nealon denied the Motion.

Judge Nealon ruled that, in order to obtain discovery of private information on social media sites the seeker of the information must, at the very least, show that the information sought is relevant to the case at hand.  One way to do that is to show that the publicly available information on the site at issue reveals information pertinent to the matter and arguably calls the claims or defenses at issue in the suit into question.

Judge Nealon also held that social media discovery requests must be properly framed so that only relevant and non-privileged information is sought and produced.

In this matter, the Court found that the plaintiffs had not established the relevance of the information on the paralegal's private Facebook pages such that the demand for the paralegal's disclosure of the user name and password was overly intrusive and would cause unreasonable embarrassment and burden to the paralegal in violation of the Pennsylvania Rules of Civil Procedure pertaining to discovery.  As such, the motion to compel was denied.

Commentary:

Judge Nealon's Opinion is another example of the courts applying the same ol' rules of discovery to a new set of circumstances.

The court in Brogan basically concluded that all of these new forms of digital technology (i.e., computer generated animations as demonstrative evidence, text messages, Facebook discovery, Twitter etc.) should be evaluated under the same, long-standing rules applicable to more conventional forms of paper discovery and evidence.  As Judge Nealon noted on p. 15 of his Opinion, "To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle."

It is noted that Judge Nealon's ruling differs from other Pennsylvania decisions in that he held that a discovery request for production of the account holder's username and password for unfettered access to the user's private information, as opposed to the actual production of photos, etc. posted on a social networking site, is too broad, overly intrusive and not stated with the "reasonable particularity" required by the Pennsylvania discovery rules.  In this regard, Judge Nealon utilized an analogy of  a party having a right to demand production of a relevant photo, but not being entitled to inspect every photo album that someone may possess in the hopes of uncovering a relevant photo.

By requiring the social media discovery request to be submitted with reasonable particularity, the court was seeking to prevent "fishing expeditions" that are frowned upon by the Rules and decisions.

Anyone wishing to review Judge Nealon's Opinion in Brogan may click HERE.

Check out the updated Facebook Discovery Scorecard HERE.  Note that you can see the various Facebook Discovery decisions from around the Commonwealth of Pennsylvania by clicking on the case names on the Tort TalkFacebook Discovery Scorecard.  That Scorecard, along with the Post-Koken Scorecard is always freely accessible by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column.

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