State News : Pennsylvania

UPDATE ON PENNSYLVANIA FACEBOOK DECISION

By Kevin L. Connors, Esquire

The Rule that has been emerging in Pennsylvania, related to discovery of Facebook postings by Plaintiffs in personal injury cases, or, for that matter, Claimants in workers’ compensation matters, is that the courts are generally granting limited discovery requests, with the threshold question being the extent to which the postings by Plaintiffs or Claimants are “public”, as opposed to being private, on social media pages.

Anyone familiar with Facebook, or social media, for that matter, is then familiar with there being some distinction, in social media websites, between allowing public access to postings, as opposed to the postee limiting access, through privacy settings that are generally available to anyone subscribing to social media.

Recently, a civil case being litigated in the Lancaster County Court of Common Pleas resulted in the trial judge, the Honorable James Cullen, ordering that a “neutral forensic computer expert” be hired, to view a Plaintiff’s private Facebook page, during a seventeen day window, the same being relevant as the Defendant was claiming that the Plaintiff, who alleged personal injuries as a result of the Defendant’s alleged negligence, had been photographed playing in the snow during that seventeen day period.

The case is Perrone v. Lancaster Regional Medical Center.

The trial judge further directed the parties to agree on the selection of a neutral expert, to be identified within seven days of the Court’s May 3, 2013 Order.

The trial judge further ordered that all discovery related to the Facebook issues be completed within sixty (60) days.

Under the trial judge’s discovery Order, the expert was to retain the Plaintiff’s Facebook user name and password, and to download the contents of the Plaintiff’s Facebook to a hard drive, with the time period from January 27, 2010 through February 13, 2010 being isolated.

The trial judge ordered that the cost of the expert’s fees to be borne by the Defendants.

This case appears to be the first case decided in Pennsylvania, in which a Pennsylvania judge has ordered the hiring of a neutral expert to view a parties’ Facebook postings and information.

In ordering the retention of a neutral expert, the trial court did not provide any specific reasoning.

As we are quickly becoming aware, trial courts throughout Pennsylvania are adopting the predominant standard, utilized in the course of granting or denying access to a parties’ private Facebook postings, with the threshold being the extent to which Facebook, or other social media,  postings are revealed publicly, with the public postings intimating that more private postings might be more relevant to the disputed issues in individual cases, vis-a-vis, whether the social media postee is what they claim to be, in court proceedings, etc., as opposed to their often embellished social media images, potentially representing greater activity than has or will be disclosed in the court proceedings in question.

To date, there have been a number of Pennsylvania trial court rulings, dealing with social media and Facebook issues, to include decisions in the following cases: 

·         Brogan v. Rosenn (Lackawanna County);

·         Hoy v. Holmes (Schuylkill County);

·         Simms v. Lewis (Indiana County);

·         Offenback v. L.M. Bowman (U.S.D.C.-Middle District);

·         Largent v. Reed (Franklin County);

·         McMillen v. Hummingbird Speedway (Jefferson County);

·         Mazzarella v. Mount Airy Casino Resort (Monroe County);

·         Gallagher v. Urbanovich (Montgomery County);

·         Zimmerman v. Weis Markets (Northumberland County);

·         Trail v. Lesko (Allegheny County);

·         Piccolo v. Paterson (Bucks County);

·         Arcq v. Fields (Franklin County);

·         Kalinowski v. Kirschenheiter (Luzerne County);

·         Martin v. Allstate (Philadelphia County);

·         Perrone v. Lancaster Regional (Lancaster County).

In general, the courts appear to be making the following rulings pertaining to social media:

·         There is no constitutional right to privacy, nor is there any privilege, that prohibits discovery of a parties’ social media activity;

·         Material found on the public portions of someone’s social media site is discoverable; and,

·         Material that is located on someone’s private page of a social media profile is discoverable, but only after a showing of a factual predicate, suggesting that allowing discovery of the private profile will lead to relevant information, and if there is no factual predicate established, discovery of private social media pages will not be allowed.

The cases that have allowed discovery include:

·         Offenback;

·         Largent;

·         Simms;

·         McMillen;

·         Perrone;

·         Mazzarella;

·         Gallagher; and,

·         Zimmerman.

When discovery was allowed, limitations were placed on the discovery that was permitted.

Discovery was not allowed, or was limited, in the following cases:

·         Trail;

·         Piccolo;

·         Arcq;

·         Simms (granted in part, denied in part);

·         Brogan;

·         Kalinowski;

·         Martin; and,

·         Hoy.

Social media issues will continue to excite, inflame, and educate litigators, as the lines between being public and private, continue to be blurred in our social unconscious, thanks to Carl Jung, the caveat to this is that no one is permitted to “friend” a litigant for the purpose of “discovery”.

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