ORIGINALLY PUBLISHED MAY 17, 2011
The plaintiff in a car accident case does not have to accept a friend request on Facebook from the defendant so that the defendant can have full access to the plaintiff’s postings and pictures, a Bucks County Common Pleas Court judge has ruled.
In Piccolo v. Paterson , Judge Albert J. Cepparulo issued a one-paragraph order denying the motion to compel filed by defendants Lindsay S. Paterson, Lee Anne Paterson, Linsey Paterson and Allstate Insurance Co.
The defendants wanted access to the photos of plaintiff Sara Piccolo that she posted of herself on the social networking site.
According to court documents, Piccolo filed an action against the defendants after she was injured in a one-car accident while a passenger in a car driven by defendant Lindsay Paterson. Paterson conceded liability but the case is ongoing because of a dispute over Piccolo’s damages.
According to the defense motion, filed by attorneys at Moore & Riemenschneider, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a "neutral friend request" to Piccolo so that he could review the Facebook postings Piccolo testified she made every day.
Piccolo denied the request but, according to defense filings, said her status updates and pictures were available for public viewing and that she would not make them private. The defense argued in its motion, however, that when it went to Piccolo’s Facebook page, those postings were in fact private and only available to her "friends."
Counsel sent Piccolo’s attorney, Benjamin G. Lipman of the Law Offices of Benjamin G. Lipman, a letter in September 2010 asking for Piccolo to accept a friend request from the defense.
Lipman ultimately denied the request, responding that the "’materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes’" Piccolo, according to the defense motion.
In support of its argument, the defense cited a September 2010 Jefferson County trial court opinion, McMillen v. Hummingbird Speedway Inc., in which the court held Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defendant’s attorney. The defense argued access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo.
In Piccolo’s response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo’s deposition about the pictures she posted on Facebook, not any textual postings. He said Paterson had already been provided "as complete a photographic record of the pre-accident and post-accident condition" of Piccolo as she "could reasonably have a right to expect in this case."
As a result of the May 2007 accident, Piccolo was hit in the face with an airbag and suffered lacerations to her lip and chin, with the impact "ripping her lip and chin away from her face." She had 95 stitches to her face in the emergency room the day of the accident and then had a surgery to repair her scarring about six months later along with several laser treatments to reduce the scarring. She is permanently scarred on her face, according to her court filings.
Piccolo allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.
"Defendant Paterson has not made a prima facie showing of need for access to the non-public pages of [Piccolo's] Facebook account," Lipman said in his motion. "She has all the photographs she can reasonably use from every different period before and after the accident and she has not asserted that there is likely to be any text in the non-public postings that is material or will likely lead to the discovery of material evidence."Lipman said Piccolo concedes that her Facebook account "is probably not protected by any evidentiary privilege that has been recognized in Pennsylvania." But he cited Rule of Civil Procedure 4011(b), which precludes discovery that would cause unreasonable annoyance, embarrassment, oppression or burden.
Lipman said McMillen was distinguishable from his client’s case because the McMillen court expressly observed that the personal injury plaintiff was making representations on the publicly viewable portion of his Facebook page that were inconsistent with the position he took in the litigation. Lipman said it was clear the defense in that case would have been prejudiced had it not had access to the private portions of the plaintiff’s Facebook page.
In Piccolo , Lipman argued, the defense never made a prima facie showing of the need for, or any prejudice that could result from the denial of, access to Piccolo’s Facebook page.
Lipman said in an interview that he was only able to find three published opinions on this issue across the country, including the one from Jefferson County. The others were in New York and California, he said.
At a hearing on the issue, Lipman said Cepparulo spoke extensively about the privacy concerns despite Pennsylvania’s general rules favoring broad and liberal discovery. And while the Jefferson County case involved textual postings, that didn’t seem to be an issue in Piccolo’s case, Lipman said.
Defense counsel Andrew P. Moore of Moore & Riemenschneider in Abington, Pa., said he was obviously disappointed by the ruling and wished there was an opinion detailing the reasoning behind the decision.
He said a plaintiff with a scar on her face would present herself differently in pictures online than she would in front of a jury and he felt getting access to those pictures was akin to surveillance. He said he would not appeal the decision, particularly given there was no opinion accompanying the order.