A Schuylkill County judge has denied without prejudice the discovery request of an automobile accident defendant seeking access into his opponents' social media accounts. The court's reasoning falls in line with the burgeoning body of common pleas jurisprudence as attorneys wait for an appellate court to issue a ruling on social media discovery.
Court of Common Pleas Judge John E. Domalakes endorsed the growing school of judicial thought that there must be a showing on a litigant's publicly available social media page to warrant discovery into his or her whole private accounts. The standard, what Domalakes identified as a showing of a "factual predicate," has been used in most cases in either granting or denying similar discovery requests.
Domalakes dismissed defendant Stephen Holmes' claim that the plaintiffs' mere filing of a lawsuit entitles Holmes to discovery of their social media accounts. The ruling brings the Law Weekly's tally of social media discovery cases to 7-6, with the instances of Pennsylvania judges denying discovery exceeding by one the instances of it being allowed.
An open question is whether courts are agreeing with the "public-to-private" standard, and the decision in Hoy v. Holmes adds to the majority adhering to it.
Domalakes noted in his 10-page opinion there is no constitutional right of privacy blocking social media discovery, but in the same breath said there is no established privilege protecting one's social media accounts. Therefore, the judge utilized three Pennsylvania Rules of Civil Procedure on discovery — Pa.R.C.P. 4001, 4011 and 4019 — and the established body of case law in Pennsylvania in dismissing Holmes' motion to compel.
"We agree that a factual predicate has to be shown by the party seeking discovery for non-public information posted on social media," Domalakes said, referring to courts that have endorsed the "public showing" rationale.
In Hoy, he said, no such factual predicate had been established.
According to Domalakes, plaintiffs Sonya Hoy and Brock Herb, mother and son, filed a lawsuit related to an automobile accident. Hoy claimed damages for present and future mental suffering, present and future pain and suffering, medical expenses, lost earnings and uncompensated work losses. Herb filed for the same.
After they filed suit, Holmes sought discovery of their social media accounts, among other things, claiming that by filing a lawsuit and claiming certain injuries, the plaintiffs had to turn over their social media information as it may be useful in his building a defense or it may lead to discoverable information.
However, it did not appear from Domalakes' opinion that the defendant presented the court with any public showing from either of the plaintiffs' social media accounts, or even a showing that they used social media, such as Facebook pages or Twitter handles.
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