Originally Published April 3, 2012
A Montgomery County judge has allowed a man claiming he was sucker-punched during a work-sponsored soccer game to investigate the Facebook page of his alleged attacker, ostensibly to find information to bolster his civil lawsuit.
Common Pleas Court Judge William R. Carpenter’s ruling touches on a novel Facebook discovery request in that it was the plaintiff asking the court to turn over his opponent’s log-in credentials. The judge ordered the alleged attacker to not delete or otherwise erase any information on his Facebook account.
According to a review of social media discovery cases covered by the Law Weekly , it has been defendants who traditionally move for Facebook information to jar claimants’ credibility.
Gallagher v. Urbanovich appears to reflect different legal terrain. In the case, Nicholas Gallagher has claimed Matthew A. Urbanovich struck him in the face without provocation during an intramural soccer game between the two men’s employers.
Urbanovich, who works for financial services firm J.G. Wentworth, according to Gallagher’s motion to compel discovery, was forced to give Gallagher’s attorney his Facebook username, email address and password within 20 days of the court’s Feb. 27 order. Gallagher also sued J.G. Wentworth.
According to attorneys, Urbanovich handed over his log-in information as ordered by the court. However, the seven-day window in which Carpenter granted Gallagher access to the profile has closed, meaning Urbanovich can change his password to something his opponent doesn’t know.
It was unclear what, if anything, the search yielded. Gallagher is set to go to depositions this month.
The decision brings the Law Weekly’s tally to five cases where a Pennsylvania judge denied discovery and four in which a Facebook probe was allowed.
In a developing area of the law, it appears that no case has gone before an appellate panel of Pennsylvania jurists.
Gallagher’s attorney said the court got it right.
"It’s another source for statements by the defendant," said King of Prussia, Pa., attorney Francis X. Clark, who represents Gallagher. "That’s the correct determination."
"It’s just like asking who you’ve spoken to about the case," he added. "That’s a legitimate question and you’re entitled to know it."
Clark said that when his client asked for Urbanovich’s Facebook password, he did not have any expectations of what the search would reveal. Clark would not comment on what the search turned up.
Christopher M. Horn, an attorney for Urbanovich, said he had asked the discovery master on the case to limit discovery to a "supervised" review of his client’s Facebook. But the court denied the request.
Horn said that as more litigants become aware of the possibility that their profiles could be made available to their opponents, the more likely they are to start deleting things.
He said unsupervised discovery generally contributes to the risk of Facebook material being altered.
Still, Horn said he tells his new clients not to delete or alter their online profiles as a court could construe that as destruction of evidence.
Urbanovich was no exception, as Horn said he told his client not to delete anything from his profile.
According to Jessica L. VanderKam, co-counsel for Urbanovich, her client pled guilty to a summary citation stemming from fight.
The emerging standard among common pleas courts appears to be that, if information readily available on a party’s "public" page warrants a deeper probe, a judge will allow it. But if nothing on a person’s public profile acts to open the gates of discovery, his or her private page will stay that way.
As Franklin County Common Pleas Court President Judge Douglas W. Herman put it in a decision late last year, "viewing relevant information on the public profile acts as a gateway to the private profile."
Gallagher appears to be an outlier.
In Gallagher’s motion to compel, he did not direct the court’s attention to anything Urbanovich had publicly posted to trigger discovery. Then again, where parties in several other Facebook cases have sought pictures and status updates to rebut testimony, Gallagher appeared to be looking for direct communications about the alleged assault.
"It’s just another source of information," Clark said.
According to Gallagher’s motion to compel, the request for Urbanovich’s "participation in social networking programs and media" was one of several documents the defense declined to provide.
In addition to the log-in credentials, Carpenter also ordered Urbanovich to turn over his tax returns as required by Gallagher’s claim for punitive damages for intentional assault.
According to Clark, the soccer league was a "fun" one, with co-ed teams and the opportunity for anybody to join.
He said Gallagher was playing against Urbanovich, who was on J.G. Wentworth’s team.
J.G. Wentworth’s attorney, Joseph H. Riches of Philadelphia firm Mason & Eiseman, declined to comment on the court’s decision.