Originally Published July 17, 2012

An Allegheny County judge has denied cross-motions from parties seeking to discover information on the Facebook profiles of the two people involved in a fatal automobile collision, ruling that the plaintiff’s request did not argue how the information would be relevant to a punitive damages claim, and that the defense motion relied on Facebook fodder that was not inconsistent with the plaintiff’s claims.

Court of Common Pleas Senior Judge R. Stanton Wettick Jr. ruled that discovery into a person’s profile, when that party is not "friends" with his or her opponent, is unreasonably intrusive under Pennsylvania Rule of Civil Procedure 4011(b), which bars discovery that causes "unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party."

However, Wettick noted that most Facebook discovery would probably fall at a "level of 2" on a scale of 1 to 10 in terms of intrusiveness, because the party resisting the discovery has already made the information available, in most cases, to a number of his or her "friends."

Still, the relatively minimal intrusiveness was enough for the judge under the circumstances in Trail v. Lesko.

"In this case, I denied the discovery requests of both parties because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case," Wettick said.

Wettick noted the developing standard in Pennsylvania courts that information from a party’s public profile serves as a "gateway" to his or her entire profile, but it was not at the crux of his line of reasoning.

The bulk of his 20-page opinion serves as an introduction to Facebook and a detailed review of the Pennsylvania trial courts that have either decided on Facebook discovery with commentary, or cases that have been detailed in press reports.

Wettick said the requests for Facebook discovery have been frequently coming in over the past year, but added he usually decides on them from the bench. Both parties usually agree with that method, he said.

With the July 3 opinion, the ruling brings the Law Weekly’s scorecard to 6-4 in favor of trial courts denying discovery motions. No appellate court has decided on the Facebook discovery issue in Pennsylvania and the nine trial court decisions Wettick cited and described have been reported on by the Law Weekly.

He also detailed opinions from other jurisdictions, which have in some cases enlisted a different standard than courts in this state.

Fewer than five pages of Wettick’s opinion are devoted to the facts and legal ruling of the case.

The plaintiff in the matter, Michael Trail, had previously argued that several Facebook postings by Timothy Lesko would prove Lesko was in fact the drunken driver who crashed into Trail in 2009, causing Trail serious injuries. Lesko had denied being the driver in previous court filings, Wettick said, but he has since admitted to his liability.

"Thus, none of the information which [Trail] seeks would be relevant to the only issue that remains in this case — damages," Wettick said.

According to the opinion, Lesko on the night of the accident had been coming from a "Gun Bash" at the Pittsburgh Elks Lodge No. 11 in September of 2009. At first, and through the third day of his criminal trial earlier this year, Lesko denied being behind the wheel.

According to his attorney, Joseph A. Hudock Jr., Lesko told police it was another man who was driving, but police took DNA samples from that man and quickly exonerated him.

On the third day of Lesko’s criminal trial, after incriminating testimony, he took a guilty plea.

That changed the course of the civil suit, wherein Trail attempted to gain complete access to Lesko’s profile and sought the authorizations necessary to compel Facebook to provide content Trail claimed Lesko had deleted.

But that was no longer necessary, Wettick said.

With regard to the plaintiff’s inquiry into his client’s Facebook, Hudock said the court got it right.

"The plaintiff and defendant probably both have Facebook pages," he said, speaking in general regarding cases like Trail. "You’re going to have to go through thousands of pages of documents in every case and that’s the fishing expedition that Judge Wettick I think is trying to avoid having everybody engage in."

"It’s even a little more intrusive for my client because he’s sitting in prison in Camp Hill[, Pa.,] at this point," added Hudock, of Summers, McDonnell, Hudock, Guthrie & Skeel.

The defense discovery motion in this case, although it was unclear from Wettick’s opinion, came from the Elks Lodge, according to Hudock.

The Elks Lodge’s attorney, James W. Young Jr. of Willman and Silvaggio in Pittsburgh, was not available for comment.

According to Wettick, the defense attached two photographs to its discovery, arguing the photos depicted Trail "’at a bar socializing’" and "’drinking at a party.’"

Not included, Wettick said, were dates on which the photos were taken or uploaded to the social media website.

"Furthermore, plaintiff has not alleged he is bedridden or that he is otherwise unable to leave the home, and the attached photographs are not inconsistent with plaintiff’s alleged injuries," he added.

Trail’s attorney, Matthew D. Racunas of the Law Offices of Patricia L. McGrail, was not available.

Hudock, Lesko’s attorney, said the accident claimed the life of Jessica Trail and left Jessica Trail’s boyfriend, who was also in the car at the time, so distraught that he committed suicide in the aftermath. The boyfriend’s estate is listed in the case caption, along with Jessica Trail, her brother, Michael Trail, and the driver, Amanda Delval, who was also injured.

State Of Social Media Law

Pennsylvania courts have allowed discovery in four cases to date, according to a review by the Law Weekly: McMillen v. Hummingbird Speedway; Zimmerman v. Weis Markets; Largent v. Reed; and Gallagher v. Urbanovich.

The courts in Kennedy v. Norfolk; Piccolo v. Paterson; Kalinowski v. Kirschenheiter; Arcq v. Fields; and Martin v. Allstate have all denied discovery.

A common thread of implicating information available on a public profile opening the gates of discovery to the private profile has been established.

Wettick also traced Facebook cases from other jurisdictions. While "largely in line" with decisions from this state, the courts have employed discovery models apparently not yet enlisted by a Pennsylvania court on the burgeoning legal issue.

For example, in an attempt to find a middle ground between a "wholesale denial" and unlimited access, some courts in other parts of the country have established discovery windows in which litigants may probe their opponent’s social media page.

In one U.S. District Court for the Southern District of Indiana case, an employment discrimination emotional distress matter, the court ordered the plaintiff’s attorney to make the initial call as to what the relevant information was on the client’s Facebook page, ranging from the time of the alleged harassment to the present. Counsel was instructed to then turn the documentation over to defense attorneys.

Specifically, in Wettick’s words, the court asked for "all verbal communications (comments, status updates, group memberships, et cetera) that reveal, refer or relate to any emotion, mental state or feeling or events that could reasonably be expected to produce significant emotion, feeling or mental state."

The plaintiff was ordered to turn over any photos she had posted to her profile in the relevant time period, but was not forced to include photos in which she was tagged by another user.

A small minority of courts outside of Pennsylvania, Wettick added, have reviewed Facebook content in camera.

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

(Copies of the 22-page opinion in Trail v. Lesko, PICS No. 12-1289, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •