Thursday, October 4, 2018

Latest Facebook Discovery Decision Uncovered (Northampton County)

For the latest social media discovery decision, check out the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, LLC, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the Plaintiff's alleged slip and fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the Plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity.  The Plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the Plaintiff's social media profiles.

In his detailed Opinion, Judge Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down around the Commonwealth by various county courts of common pleas as well as by courts from other jurisdictions.

No Pennsylvania appellate court decision was referenced by the Allen court as there are apparently still no such decisions to date.

In his Opinion, Judge Dally noted that the Defendant had pointed out discrepancies between the Plaintiff's deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the Plaintiff's Facebook profile depicting the Plaintiff engaging in certain activities.

After reviewing the record before the court, Judge Dally ruled that the defense had failed to establish the factual predicate of showing sufficient information on the Plaintiff's public pages to allow for discovery of information on the Plaintiff's private pages.

In a footnote 6, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the Defendant wishes to access further.

The court additionally noted that, in any event, "it would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party's social medial account by requiring the responding party to  to turn over their username and password, as requested by the Defendant in this case."  This the court found would be overly intrusive, would cause unreasonable embarassment and burden, and represented a discovery request that is not properly tailored with reasonable particularity as required by the Rules of Civil Procedure pertaining to discovery efforts.

In light of the above reasoning, the Defendant's Motion to Compel was denied.

Anyone wishing to review this decision may click this LINK.

To review the Tort Talk Facebook Discovery Scorecard click this LINK. 

The Scorecard can always be freely accessed by going to and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."

If you are willing to do so, please do not hesitate to send me a copy of any Social Media discovery or admissibility decisions you may come across in order that the Tort Talk Facebook Discovery Scorecard and be continually updated.  Thanks very much.  DEC

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