Originally Published Dec. 11, 2012

Editor’s note: The following is the first of a two-part series on Pennsylvania courts’ decisions on the discoverability of social media.

Highlighting the need for guidance from the state’s appellate courts, a Monroe County judge’s recent decision on a discovery motion into a woman’s social media account appears to have deviated from the growing school of thought among Pennsylvania jurists.

A review of decisions coming from trial courts reveals a tight race between "discovery allowed" and "discovery denied." When one side pulls ahead, the other seems to closely gain ground. Right now, the Law Weekly’s tally has Pennsylvania judges granting discovery into a social media site six times and denying it six times.

If there’s been a common thread among courts landing on both sides of the issue — though not universal — it’s the public-to-private rationale. Judges have, in most cases, granted access to a party’s private account when something available on their "public" page indicates that more discovery is warranted, or denied for the same reason.

As Franklin County Court of Common Pleas President Judge Douglas W. Herman put it in Arcq v. Fields: "In essence, viewing relevant information on the public profile acts as a gateway to the private profile."

But in a decision last month, a Monroe County judge granted discovery apparently without such a showing, according to court filings by the parties involved. The judge said the plaintiff suing for personal injury has no expectation of privacy if she uses social media. The plaintiff, according to court records, had objected to an interoggatory regarding her use of social media.

In another recent decision, however, Indiana Court of Common Pleas Judge Thomas M. Bianco did endorse the growing line of reasoning, deciding the discovery motion in Simms v. Lewis based on the public showing threshold.

In Simms, a motor vehicle case, Bianco granted one defendant access to plaintiff Brittni Simms’ "myYearbook" account because information provided by the defense on the publicly available portion of her account opened the gates of discovery to the rest of her social networking page.

According to the October opinion, Simms, who is suing for injuries suffered in a 2009 car accident, posted the following on her myYearbook at some point after the accident took place: "’Chillin with my girl tonight. were gonna do some Zumba Fitness :) so excited!!! HTC :p’"

Bianco pointed to one of the first known decisions in which a Pennsylvania judge granted discovery, Zimmerman v. Weis Markets, as particularly analogous to Simms. In Zimmerman, the plaintiff sought damages for lost wages, future earning capacity and pain and suffering. He alleged his ability to enjoy life’s pleasures decreased and that his general health was impaired. In that case, the plaintiff also 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 Simms, Bianco said: "Attending a fitness class is relevant, as it directly relates to [Simms'] claim that she has suffered a severe injury and is deprived of the ordinary pleasures of life. Based upon the information contained in a post visible on her public page, it is reasonable to infer that the non-public portion of [her] account may contain additional relevant evidence."

The judge denied requests to gain access to Simms’ Facebook and MySpace pages under the same line of reasoning, but offered leeway to the defendant to provide the "factual predicate necessary for requesting non-public access to these accounts."

Right to Privacy?

In the Monroe County case from last month, Court of Common Pleas Judge David J. Williamson didn’t appear to require a finding on a public page in order to allow discovery.

Williamson’s two-page order offers little on the facts of Mazzarella v. Mount Airy #1, or the details of his rationale, but the judge nonetheless made clear his views on the expectation of privacy on social media platforms.

He said: "Those who elect to use social media, and place things on the Internet for viewing, sharing and use with others, waive an expectation of privacy," Williamson said. "At this point, the information requested is not a privacy violation."

Court filings from both sides appear to indicate that the threshold public showing did not directly affect the judge’s decision.

In plaintiff Donna M. Mazzarella’s brief opposing the casino’s motion to compel, she noted the defendant casino had not provided the court with any indication that something on Mazzarella’s public page would lead to anything relevant in the private sphere.

Wilkes-Barre attorney John A. Bednarz Jr., representing Mazzarella, wrote in the brief that Mount Airy had not alleged that anything on the public part of Mazzarella’s Facebook page would indicate the relevance of something behind the walls of her privacy settings.

Bednarz said the mere existence of a party’s Facebook page does not justify discovery sought.

Reached for comment, Bednarz said, "I felt that it’s either party’s burden, even if it’s a plaintiff asking for it, that there’s a predicate that you have to meet. There was nothing in this case that was alleged at all. Other than ‘we want to see it.’"

Bednarz said another concern he had with turning over the information was that, technically, it’s a violation of Facebook’s rules and policies to give someone else your login information.

The defense motion to compel discovery, on the other hand, focused on the fact that Mazzarella objected to an interoggatory regarding her use of social media and how information on Mazzarella’s social media pages could relate to the subject matter of her case — injuries and limitations due to a slip-and-fall at the casino in 2008.

The casino argued the existence of social media, on its own, shows the webpages could house valuable information for the defendant’s case.

"By its very definition, social networking involves interactive online sharing and disclosure of one’s personal life and activities with others," the motion said.

The defense also argued that a risk/reward analysis shows that any harm Mazzarella may suffer in disclosing the usernames and passwords to her social networks was outweighed by the benefit that information could give the court.

"Clearly, the existence of social media is discoverable, as well as access to that social media," wrote Michael F. Frisbie, the Hendrzak & Lloyd attorney who is representing Mount Airy Casino Resort.

In an interrogatory, the casino asked Mazzarella to state whether she was a member of any social networking group, including Facebook, Twitter, LinkedIn or MySpace.

If yes, the defense asked for the name and Web address for each site, Mazzarella’s dates of membership and her passwords to log in.

Frisbie did not return a call requesting comment.

‘No Clear Consensus’

For Scranton attorney Daniel E. Cummins, who has been keeping track of state court decisions on Facebook motions on his blog, TortTalk, and is a regular columnist for the Law Weekly, the recent cases highlight the need for appellate review in Pennsylvania. While the public-to-private standard has been adopted more often than not, it is certainly not set in stone, Cummins said.

As Cummins put it: "There’s no clear consensus yet. We’re going to continue to see motions and continue to see conflicting decisions."

Cummins said even issues such as how courts implement discovery orders — how, and for how long, should a party have access to their opponent’s social media accounts? — are poised for review.

In Simms, for example, Bianco ordered the parties to schedule a conference at which Simms would access her myYearbook account in front of defense counsel.

Simms’ attorney, Mark E. Milsop of Berger and Green in Pittsburgh, said the judge’s decision to schedule the conference with attorneys present highlights the need for safeguards in granting social media discovery motions.

"I think that’s important," Milsop said. "Defense attorneys should not have the right to have unfettered access to an injured person’s personal information."

Then again, Milsop said the entire idea of allowing a litigant to probe his or her opponent’s social media accounts is "highly invasive" and therefore should be granted sparingly.

"Really, the whole Facebook thing should not be granted as a general matter," he said. "To me, it’s like telling someone they can walk around your house and see what pictuers you have hanging around and read your love notes and Christmas cards."

What Next?

Perhaps the biggest issue is the need for a formal adoption of the standard under which discovery may move forward, such as the threshold showing of publicly available and relevant information.

While Cummins said "the trend appears to be headed in that direction," referring to that threshold, cases like Mazzarella and Kalinowski v. Kirschenheiter are examples of decisions that have seemingly gone against the grain.

Kalinowski was actually a discovery denial. In the case, Luzerne County Court of Common Pleas Judge Joseph Van Jura issued an order without an opinion blocking a defendant insurance company from accessing a personal injury plaintiff’s social media pages, albeit telling the plaintiff not to delete his accounts.

The plaintiff had been shown in pictures and event invitations that seemed to meet the public threshold utilized by other courts.

For that reason, practitioners are eager for appellate guidance.

"They’re all over the place," added Bednarz, referring to decisions from Pennsylvania courts of common pleas.

"There are more restrictive allowances of the information, there are ‘you’ve got to show some threshold’ decisions," the attorney added.

And then there are outright denials.

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

(Copies of the eight-page opinion in Simms v. Lewis, PICS No. 12-2289, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)