As Cooper sees it, here's how the issue could become ripe for appeal: A judge denies a pretrial discovery motion, blocking a party's access to its opponent's social media accounts. The party on the losing end of the discovery motion argues the discovery is necessary to reflect "true depictions" of their circumstances. (For example, defense counsel finds a picture of a woman enjoying life's pleasures found on one of her friends' Facebook pages that ?contradicts the woman's claims in court.) The case then must go to trial, the losing discovery party must lose at trial, and, on top of that, it must consider the discovery motion a viable argument on appeal. Then it may go up all the way, Cooper said.
In Cooper's mind, though, those circumstances reflect the very pitfalls of a "blanket rule" that may result from appellate review.
"I think the way the case law has developed, I think it's a common sense approach," he said. "Each case should stand and fall on its facts."
For example, many of the trial court decisions in Pennsylvania so far have dealt with a showing on one of the actual party's social media pages. But what happens when a defense lawyer, finding little success on the plaintiff's actual page, pores through those of the plaintiff's "friends" until he or she finds that one picture of the plaintiff needed to compel discovery?
"You go into their friend's profile and they have pictures of the plaintiff publicly available," Cooper said, ?even though the plaintiff has all the right privacy settings in place. "Now can the defense lawyer get the plaintiff's profile?"
Cooper said that situation highlights the need for a balancing of factors and discretionary standard, rather than an all-encompassing rule.
But several attorneys said they were as eager for word from a higher court as they were doubtful about the chances of it happening.
Lawyers were equally unconvinced a judge would halt a case simply for a social media discovery motion, ?meaning the issue is not a good candidate to be certified for an interlocutory appeal.
Some speculated social media discovery could be the subject of rule-making, while others questioned whether the state Supreme Court would endorse such a move.
Stephen E. Geduldig of Thomas, Thomas & Hafer represented the defendant in Zimmerman v. Weis Markets, the second reported case where a judge granted discovery, back in May 2011. Geduldig, who has given talks on the subject of social media discovery motions, said he has not seen the ?issue "come up anywhere close to appeal."
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