In Piccolo v. Paterson, No. 2009-04979 (Bucks C.P. Mar. 2011), plaintiff Sara Rose Piccolo was injured in a car accident and sustained severe lacerations to her face. The defendants moved to gain access to her Facebook page by way of a "friend request" so that they could have access to photographs on the nonpublic portions of her Facebook page. Piccolo had already disclosed numerous pre- and post-accident photographs in discovery, so the court denied the defendants' motion without an opinion.
In Gallagher v. Urbanovich, No. 2010-33148 (Montgomery C.P. Feb. 24, 2012), the plaintiff was assaulted during a soccer game and requested the defendant's login and password. Even though the plaintiff did not reference anything in the public portion of the Facebook page, the court granted access.
In Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 3, 2012), plaintiff Michael Trail was injured while he was a passenger in a car Timothy Lesko was operating after a "Gun Bash" event at the Pittsburgh Elks Lodge. Trail sustained serious injuries and, originally, Lesko claimed he was not the driver. During discovery, Trail moved for disclosure of Lesko's Facebook page in order to discover information that would prove he was the driver. However, Lesko finally admitted, by way of his responses to request for admissions, that he was the driver and also admitted liability. Lesko also moved to disclose Trail's Facebook page, and attached two photographs obtained from Trail's public Facebook page showing Trail "at a bar socializing" and "drinking at a party." However, Trail did not claim he was bedridden or unable to leave his home and, therefore, the court found that the photographs were not inconsistent with his injuries.
With those facts in mind, the court balanced the need for discovery and the extent of the annoyance, embarrassment, oppression, burden or expense generated by the disclosure of the parties' Facebook usernames and passwords. The court denied both the defendant and plaintiff's motions because the intrusions were not offset by a showing that the discovery would assist the requesting party in formulating their claims or defense. Specifically, Lesko had already admitted liability, and there was no argument made by Trail that Lesko's Facebook page would provide evidence of damages. With regard to the plaintiff's Facebook page, the pictures provided from the public Facebook page were not inconsistent with his claims.
The case law has provided a clear road map to discovery of Facebook (and other social networking) pages in Pennsylvania. Parties should expect that if the publicly viewable portions contain statements or photographs that could be construed as inconsistent with their claims in the lawsuit, a court will subsequently compel disclosure of the private portions as well, including photographs, wall posts, status updates and the identification of friends. Conversely, pages that provide only limited information to the public are presently less likely to have their private contents disclosed in discovery in large part because of the corresponding inability of an opposing party to establish a foundation, showing that full access to the page will lead to relevant evidence.
Stewart Eisenberg is a founder and senior partner of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, and has an established record of earning multimillion-dollar verdicts and settlements for victims of catastrophic injuries and death. He is a past president of the Pennsylvania Association for Justice and a past president of the Philadelphia Trial Lawyers Association.
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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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