Originally Published Dec. 20, 2011

Two Pennsylvania courts have recently denied defense motions asking for access to plaintiffs’ private social media pages, apparently evening the social media scoreboard and giving plaintiffs some much-needed case law to counter a trio of opposing decisions.

In one of the cases, a Franklin County judge denied an auto-accident defendant’s motion asking for access to the plaintiff’s social media pages because the request did not stem from information found on the plaintiff’s public profile. It appears to be the first decision in this state to deal with social media discovery in which the defendant could not point to content available for anyone to see.

In the other case, a Luzerne County judge denied a defendant insurance company’s request to gain access to its opponent’s private Facebook and Myspace pages, but ordered the plaintiff not to delete the websites or any of the content on them.

The Franklin County decision, entered by President Judge Douglas W. Herman this month, and the Luzerne County ruling, which came without an opinion from Judge Joseph Van Jura, seem to buck a sprouting trend in which trial judges in this state had favored similar defense motions, albeit with distinguishing facts.

The decisions bring the score to 3-3, according to a review of similar cases covered by The Legal Intelligencer and the Law Weekly . Three courts have now ruled in favor of the party seeking discovery and three have found for the responding party. In every case, the party moving for discovery was the defendant.

In a four-page opinion in Arcq v. Fields , Herman distinguished the ruling from another recent decision out of Franklin County.

In Largent v. Reed , which came down last month, the defendant established a good-faith basis for requesting access to the plaintiff’s private Facebook page because of information available on the public page — in that case, a status update about going to the gym and pictures of the plaintiff "enjoying life with her family."

The decision in Arcq becomes important because, absent such evidence to trigger discovery, the court has denied any private probe.

"In essence, viewing relevant information on the public profile acts as a gateway to the private profile," Herman said.

The ruling stems from an auto-accident in which plaintiff James A. Arcq has alleged defendant Robert R. Fields was negligent.

Arcq is seeking damages for continuing medical care, disfigurement, infertility and other ailments, Herman said.

He is suing Fields’ employer, Groves US LLC, as vicariously liable, according to Herman.

At a deposition, Herman said, Arcq testified that he cannot partake in certain activities as a result of the collision.

At the same deposition, the defense said it "’believe[s] and therefore aver[s] that [Arcq]‘ is a member of social networking websites such as Myspace, Facebook, LinkedIn, Twitter and the like," Herman said.

The defense, through interrogatories, asked for the usernames and passwords to any social media websites on which Arcq was a member as well as "’messages, photographs, videos and online communications’" relevant to the case, Herman said in a footnote.

Arcq objected to the request, arguing that the request was not reasonably calculated to lead to discoverable evidence, as set forth in Pa.R.C.P 4003.1 (b), and because he has a reasonable expectation of privacy of the information requested.

The court noted the lack of appellate precedent in this state, but pointed to the developing body of lower court decisions as guidance.

Door Still Ajar For Discovery

Van Jura seemingly left the door open to revisit the Facebook issue in Kalinowski v. Kirschenheiter , denying the motion without prejudice and ordering plaintiff Ted Kalinowski — a Northeastern Pennsylvania bar owner — not to delete his social networking pages.

The case has been certified for trial, but no date has been set and the case has not been assigned to a judge, according to the plaintiff’s attorney.The decision follows motions from co-defendant National Indemnity Co. requesting discovery of the Web pages after it argued the pages reveal actions inconsistent with the plaintiff’s alleged physical limitations.

Kalinowski, however, successfully argued there was no direct impeachment information on his public pages, which he said was required under the ripening body of case law in this state.

In the underlying claim, Kalinowski filed a personal injury complaint against Emil Kirschenheiter and National Indemnity, Kirschenheiter’s underinsured motorist carrier, following a 2009 car accident.

According to Kalinowski’s brief in opposition to the motion to compel, Kirschenheiter rear-ended him in a mid-day collision in Pittston Township, Pa.

In response to National Indemnity’s interrogatories, Kalinowski claimed he can only work at his Dunmore, Pa., bar — Rum Runnerz — on a limited basis. He said he had to delegate stocking and bartending duties, according to defense court papers.

Rum Runnerz has a Facebook pages of its own. On it, Kalinowski uses the bar’s Facebook to advertise Rum Runnerz events and "interchangeably as his own account," according to National Indemnity’s motion to compel. The defense pointed to birthday wishes to Kalinowski on the page as well as posts from Kalinowski himself.

At a deposition in June 2011, Kalinowski testified that he remains limited in his daily activities, cannot drive long distances and is restricted in his ability to travel. At the same deposition, National Indemnity’s attorney asked Kalinowski if he had a Facebook page and, when he replied that he did, asked for his user name and password.

"’I don’t think that’s any of your business,’" his attorney replied, according to Kalinowski’s brief in opposition.

The day after the deposition, National Indemnity wrote to Kalinowski’s attorney, requesting access to Kalinowski’s personal Facebook and Myspace pages, as well as access to Rum Runnerz’s Facebook page and that of Gibbles Lounge, a bar that Kalinowski had previously owned.

His lawyer wrote back, refusing to turn over the information and the insurance company followed with the motions to compel and preserve.

In its motion to compel, National Indemnity argued that the request for such access was reasonably calculated to lead to the discovery of admissable evidence "because the publicly available section [on] the Rum Runnerz Facebook page shows [Kalinowski] acting in a manner inconsistent with his claimed limitations."

One such example, the defense argued, was a Rum Runnerz event from May 2011 called "Teddy’s Moving Extravaganza." The party appears to have celebrated Kalinowski moving to Ocean City, Md. The event was advertised with a picture of Kalinowski superimposed over a beach scene and the text: "TEDDY’S OCMD PARTY!!! OCEAN CITY HERE I COME!!! Let’s make this a night he WON’T REMEMBER!!"

In addition, Kalinowski’s Myspace page has a publicly available profile picture showing him "sprawled, lounging comfortably, on a bar stool with one foot up on another bar stool," according to the defendant’s court papers. He dons sunglasses, a blue fur coat with no shirt underneath, and a white fedora, National Indemnity said.

It appears that Kalinowski has kept that as his profile picture — a review of a Myspace page registered to Teddy Kalinowski, a 34-year-old from Scranton, reveals the same photo.The insurer also noted in court papers that Rum Runnerz advertised a lingerie party on its page.

It cautioned the court of a decision allowing the bar owner to delete content of his pages or to delete them altogether.

"With a single click of the ‘delete’ key, [Kalinowski] has the ability to irreparably harm National Indemnity’s ability to form a defense by depriving defense counsel of the discoverable contents of his social media Web pages," National Indemnity said in its motion to preserve.

Joan D. Daly of Marks O’Neill O’Brien & Courtney is representing National Indemnity. Matthew J. Allen, who has left the firm, argued the motions.

In Kalinowski’s brief in opposition, under a section titled "Lingerie, Going Away, and a Halloween Costume," Kalinowski argued the defense was attaching "seeming significance" to the public portions of his personal and business social media sites.

"If National Indemnity wants to vilify [Kalinowski] because his bar had a Lingerie Party, advertised a going away party that would give [him] a ‘Night He Won’t Remember,’ or because he dressed as a ‘pimp’ at a Halloween party in an undated photograph, National Indemnity found fodder on the public portions of these social network pages," Kalinowski’s attorney, Ann O. Farias wrote.

In a footnote, Farias notes that Kalinowski offered proof that the beach photo for his going away party pre-dated the collision. It also notes Kalinowski said he did not post the moniker about not remembering the going away party and that he asked his "marketing person" to remove the comment from the ad, though to no avail.

Kalinowski argued that the insurance company failed to understand the concept of "puffery" in advertising, and that the company had therefore reached the conclusion that an alcohol-driven Kalinowski blackout was a "stated goal" of the party.

Facebook Decisions Split

While there is no appellate precedent to guide lower courts on discoverability of information on Facebook, there is a growing body of trial court decisions. Kalinowski and Arcq offer plaintiffs lawyers two more decisions to cite, joining Piccolo v. Paterson , a Bucks County decision from earlier this year.

For the defense bar, the go-to decisions remain Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc . Those cases, along with Largent , will continue to be cited by defendants seeking discovery.

In Zimmerman , Kalinowski noted, the plaintiff’s public Facebook profile offered the defense "direct impeachment" information. In the case, the plaintiff argued he was embarrassed by a scar on his leg, which was the result of a forklift accident, but was then shown on his Facebook wearing shorts, the scar plainly visible.

In Kalinowski’s case, he argued, National Indemnity "raises innuendo and speculation" about what is on his private social media pages, but no direct impeachment.

Farias wrote in an e-mail that she agreed with the decision. 

"I think Judge Van Jura made the right decision on the Facebook motion given the particular facts of our case," Farias said.

Daly said she disagreed with the decision, declining to further comment on the order because she did not argue the motions.She added that plaintiffs attorneys can expect Facebook information to come up, calling it "fair game." She added that it is discoverable just like a person’s diary would be, if not moreso.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the six-page opinion in Arcq v. Fields , PICS No. 11-4637, are available from Pennsylvania Law Weekly . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •