Stewart Eisenberg
In today's digital and virtual society in which almost everyone has some sort of social networking page, it is critically important for attorneys to be aware of what is discoverable in a personal injury lawsuit. Currently, there is a dearth of Pennsylvania appellate case law on the issue of discoverability of nonpublicly viewable Facebook information (i.e., "private" photographs, wall posts, status updates and, inter alia, friend lists). However, several lower court opinions on this topic have recently been issued. A plurality of the decisions suggest that there should be a threshold demonstration that the nonconfidential Facebook information is likely to contain or lead to admissible evidence.
In Zimmerman v. Weis Markets, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Northumberland Cty), a defendant demonstrated that publicly viewable portions of a plaintiff's Facebook and Myspace pages (specifically, status updates and photographs) were inconsistent with his claim that he was permanently injured. Specifically, the plaintiff, Rane Zimmerman, was injured in a forklift accident. At his deposition, Zimmerman testified that he never wore shorts because he was embarrassed by a scar he had sustained from the accident. However, on the public portion of his Facebook page, he posted photographs that showed him wearing shorts — and his scar was clearly visible.
The court explained that the moving party must provide a threshold showing that the publicly accessible portion of the Facebook page (or any social networking site) contains information that would suggest that further relevant postings are likely to be found by access to the nonpublic portions. Under that framework, the court ordered production of the private portion of Zimmerman's Facebook page because he had placed his physical condition at issue in the case and the publicly accessible portion included photos that were relevant to the claim that he was embarrassed by his scars. The court, however, explained that parties do not have carte blanche entitlement to Facebook and Myspace passwords; rather, the above-referenced threshold showing must be met and "so-called 'fishing expeditions' will not be authorized."
A similar approach was utilized by the Franklin County Court of Common Pleas in the 2011 opinion Arcq v. Fields (No. 2008 2430, December 7, 2011). In Arcq, the court denied the defendant's motion to compel access to the plaintiff's private Facebook page because there was not any information (pictures, posts, etc.) from the public portion of the page that would allow the court to conclude that information from the private portion would lead to admissible evidence.
A more recent decision in the Franklin County Court of Common Pleas ordered the disclosure of a plaintiff's Facebook username and password after the requisite threshold was met. In Largent v. Reed (No. 2009-1823, November 8, 2011), plaintiff Jennifer Largent suffered from chronic physical and mental pain as a result of a car accident. At her deposition, she testified that she used a cane to walk. Defendant Jessica Rosko, formerly known as Jessica Reed, claimed that Largent's formerly public Facebook account included status updates about exercising at a gym and other photographs that undermined her claims.
The court held that the information on her Facebook page was clearly relevant and explained that there is no privilege in Pennsylvania that protects a party from disclosure of Facebook material. Additionally, Largent raised an objection to the discovery, contending that the Stored Communications Act (SCA) protected her Facebook page from discovery.
The court dismissed that argument, explaining that the SCA does not apply, because Largent was not an entity regulated by the SCA and Rosko sought the Facebook username and password from Largent, not via a subpoena to Facebook (which is an entity regulated by the SCA). The court held that any posts on Facebook that concern Largent's health, mental or physical, are discoverable. Like in Zimmerman and Arcq, the Largent court required a good-faith threshold showing by the moving party that the discovery would lead to relevant information.
In the case of Martin v. Allstate Fire and Casualty Insurance, Case ID 1104022438 (Phila.C.P. Dec. 13, 2011), plaintiff Patricia Martin was struck as a pedestrian by a passing car and suffered serious injuries. During her deposition, she testified that she had a Facebook account and, thereafter, the defendant moved to compel her Facebook username and password. Martin opposed the motion because Allstate never asked how she used her Facebook page, i.e., whether she posted status updates or pictures. Therefore, the defendant failed to make the threshold showing that the plaintiff's Facebook page was relevant, and accordingly the court denied Allstate's motion to compel.
In another Philadelphia case, Kennedy v. Norfolk Southern, Case ID 100201473 (Phila.C.P. Jan. 4, 2011), plaintiff David Kennedy was injured applying handbrakes while working on a train. At his deposition, he testified that he enjoyed skeet shooting with his children before the accident but was unable to do so afterwards. On the public portion of his Facebook page, he indicated that he liked "shooting," so Norfolk Southern Railway Co. moved to compel access to the private portions of the page. Norfolk Southern argued that "shooting" on Kennedy's Facebook page, as an interest, was inconsistent with his deposition testimony; however, the court did not find that the requisite threshold showing of relevance was made and the motion was denied.
In Kalinowski v. Kirschenheiter, No. 2010-6779 (Luzerne C.P. 2011), plaintiff Ted Kalinowski was injured in a car accident and alleged that his injuries limited his ability to work, go about daily activities and drive long distances. Defendants Emil Kirschenheiter and National Indemnity moved to compel his Facebook page and in support provided the court with a picture from Kalinowski's public page showing him "lounging comfortably on a barstool with one foot up on another barstool." The court did not find that the relevance threshold showing was made and denied the motion without prejudice. The court also ordered the plaintiff to refrain from deleting content from his profile, thereby leaving the door open for a subsequent request after a more detailed showing of relevance.
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Daniel E. Cummins
Nice synopsis of the current status of the law in this regard. I note that a copy of each of the opinions referenced in this article can be accessed online on the Facebook Discovery Scorecard on my blog, Tort Talk. Just go to the Tort Talk blog website at www.torttalk.com, scroll down the right hand column and click on the date noted under the "Facebook Discovery Scorecard" to access that page. There, click on the case name titles to be taken to the actual opinions online.
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