Following a defense motion, the court granted discovery, deciding there was no expection of privacy on Facebook.
As the judge put it: "Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets."
But Carmelite, reached for comment last week, said the defense then ?shared with the plaintiffs what it had ?already found on one of their social media accounts and posed the question: "Do you really want us to get her password?"
The case then settled.
New York Appeals Court Weighs In
At least one appellate court has decided the discovery issue.
In Richards v. Hertz, the New York Supreme Court Appellate Division, Second Department, granted in camera review of one plaintiff's entire private Facebook page, modifying a lower court's order that both plaintiffs in the case turn over "'every photo on Facebook'" showing both of them playing sports.
But there's a catch.
The reason that case reached the appeals court was because of — in the words chosen by the New York State Bar Association, describing the state's interlocutory appellate procedure — a "generous policy" on appellate review of non-final orders standing in "marked contrast" to the restricted right of federal courts and many states.
That policy allows litigants to reserve the right to appeal non-final orders.Pennsylvania doesn't allow that.
For that reason and several others, e-discovery specialist and Law Weekly contributor Leonard Deutchman joined the attorneys in their circumspect sentiment as to whether a Pennsylvania appeals court would soon get the opportunity to talk Facebook.
"By the time something gets decided by an appeals panel," Deutchman said, "I wonder what the technical landscape is going to look like then."
Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •
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