MISPLACED PRIVACY

 

By Kevin L. Connors, Esquire

 

 

“No matter where you go, there you are!”

 

If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with  his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.

 

If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?

 

Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?

 

So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.

 

And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”

 

Yes, there is a point.

 

At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.

 

And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.

 

One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?

 

And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy. 

 

And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.

 

Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.

 

Recent Pennsylvania Rulings

 

Two recent Pennsylvania rulings are of interest.

 

The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.

 

Mazzarella v. Mount Airy Casino Resort

 

Mazzarellais a ruling issued on November 7, 2012.

 

It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.

 

So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.

 

The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.

 

Simms v. Lewis

 

Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.

 

Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.

 

After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.

 

In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight.  We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.

 

Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace.  Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.

 

TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).

 

It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.

 

However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.

 

While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.

 

Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.

 

TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.

 

So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.

 

New York, New York

 

Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.

 

In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.

 

The Federal District Court Judge granted that Motion in part, and denied the Motion in part.

 

Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.

 

This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”

 

The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.

 

As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).

 

Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.

 

Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).

 

InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.

 

Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.

 

Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.

 

The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.

 

More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).

 

Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.

 

Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.

 

The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.

 

So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.

 

All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.

 

 

Kevin L. Connors can be reached at: kconnors@connorslawllp.com