Editor’s note: The following is the second of a two-part series on Pennsylvania courts’ decisions on the discoverability of social media.
For Pennsylvania attorneys who are following the state’s body of law on discovery motions regarding social media, here’s one thing to consider: While the law is not settled, many of the cases posing key questions of law have been.
What that means, according to attorneys interviewed, is that Pennsylvania practitioners could be waiting a good while before they receive definitive word from an appellate panel on the issue. The cases, many of which are personal injury matters, tend to settle. And if they do go to trial, an unfavorable pretrial discovery motion would not be the likely focus of an appeal, attorneys said.
Right now, the social media race is tied up in Pennsylvania, according to the Law Weekly’s records, with Pennsylvania judges granting discovery into a social media site six times and denying it six times. If a standard has emerged, it’s that a party must show something on its opponent’s “public” page demonstrates his or her “private” page may lead to more admissible evidence.
But that standard is hardly unanimous, as evidenced in a recent case out of Monroe County where the judge ruled a plaintiff has no expectation of privacy on social media. In Mazzarella v. Mount Airy No.1, the judge apparently granted discovery without a public threshold showing, according to court filings by the parties involved.
So, the Law Weekly called around to attorneys in all of the cases of record that have featured so-called Facebook discovery motions to see if any were possibly headed to a higher court. Out of 12 cases reported on, at least seven have settled and three await trial.
And when the matters were resolved outside of court, lawyers typically reported the underlying discovery motion had nothing to do with it, though not always.
Take the matter of Kalinowski v. Kirschenheiter, in which a Luzerne County judge denied a defendant insurance company’s request to gain access to the plaintiff’s private Facebook and Myspace pages, but also ordered the plaintiff not to delete the websites or any of the content on them. That case settled earlier this month.
“There was no fear of Facebook in our decision to settle,” said the plaintiff’s attorney, Ann O. Farias of the O’Donnell Law Offices in Kingston, Pa.
“I’d like to have some appellate guidance,” Farias said. “I don’t know how likely it is.”
According to plaintiffs attorney Scott B. Cooper, it’s going to take “the perfect storm” for the issue to work its way up to an appellate court.
As Cooper sees it, here’s how the issue could become ripe for appeal: A judge denies a pretrial discovery motion, blocking a party’s access to its opponent’s social media accounts. The party on the losing end of the discovery motion argues the discovery is necessary to reflect “true depictions” of their circumstances. (For example, defense counsel finds a picture of a woman enjoying life’s pleasures found on one of her friends’ Facebook pages that
contradicts the woman’s claims in court.) The case then must go to trial, the losing discovery party must lose at trial, and, on top of that, it must consider the discovery motion a viable argument on appeal. Then it may go up all the way, Cooper said.
In Cooper’s mind, though, those circumstances reflect the very pitfalls of a “blanket rule” that may result from appellate review.
“I think the way the case law has developed, I think it’s a common sense approach,” he said. “Each case should stand and fall on its facts.”
For example, many of the trial court decisions in Pennsylvania so far have dealt with a showing on one of the actual party’s social media pages. But what happens when a defense lawyer, finding little success on the plaintiff’s actual page, pores through those of the plaintiff’s “friends” until he or she finds that one picture of the plaintiff needed to compel discovery?
“You go into their friend’s profile and they have pictures of the plaintiff publicly available,” Cooper said,
even though the plaintiff has all the right privacy settings in place. “Now can the defense lawyer get the plaintiff’s profile?”
Cooper said that situation highlights the need for a balancing of factors and discretionary standard, rather than an all-encompassing rule.
But several attorneys said they were as eager for word from a higher court as they were doubtful about the chances of it happening.
Lawyers were equally unconvinced a judge would halt a case simply for a social media discovery motion,
meaning the issue is not a good candidate to be certified for an interlocutory appeal.
Some speculated social media discovery could be the subject of rule-making, while others questioned whether the state Supreme Court would endorse such a move.
Stephen E. Geduldig of Thomas, Thomas & Hafer represented the defendant in Zimmerman v. Weis Markets, the second reported case where a judge granted discovery, back in May 2011. Geduldig, who has given talks on the subject of social media discovery motions, said he has not seen the
issue “come up anywhere close to appeal.”
The Zimmerman case, meanwhile, has been settled.
“I don’t know that anyone’s tried to certify it for interlocutory appeal,” Geduldig added. “If you know of any, let me know.”
Geduldig said in his experience “the call is the call,” referring to Facebook discovery, and parties tend not to fight it further than their motions on that point. Appealed more often, Geduldig said, are evidentiary and admissibility issues that come up during trial.
“It’s a shame, because there are cases all over the place right now,” Geduldig said.
Not every lawyer interviewed forecast doubt on the chances the Superior Court would weigh in soon.
King of Prussia attorney Francis X. Clark, who represented the plaintiff in Gallagher v. Urbanovich, said the issue will “continue to surface” and in the case where it has an outcome on liability, it very well could go on up.
In Gallagher, it was the plaintiff, Nicholas Gallagher, who moved for discovery, aiming to investigate the Facebook page of a man who allegedly sucker-punched him during a work-sponsored soccer game.
A Montgomery County judge granted Gallagher’s motion, further ordering the alleged attacker to not delete or otherwise erase any information on his Facebook account.
Matthew A. Urbanovich, the defendant, was forced to hand over his Facebook username, email address and password within 20 days of the court’s February 27 order, triggering a seven-day window in which the plaintiff could dig around on Urbanovich’s profile. Gallagher also sued J.G. Wentworth, Urbanovich’s employer.
Reached last week for comment, Clark said the case has since settled,
but added that the resolution had nothing do with Facebook.
However, he added, if a party uncovers information from social media that could be devastating to its opponent’s case, Clark said he could see a court certifying the underlying discovery motion for an interlocutory appeal.
“Confidentiality issues are often subject to interlocutory appeals,” he said.
If there’s one sentence that sums up the opinion of the majority of state judges, it comes from Franklin County President Judge Douglas W. Herman in Arcq v. Fields.
In the case, Herman said: “In essence, viewing relevant information on the public profile acts as a gateway to the private profile.”
Like several other cases, Arcq settled for reasons other than social media, according to the defendant’s attorney, James DeCinti of Pion, Johnston,
Nerone, Girman, Clements & Smith. Herman had denied the motion for discovery anyway.
However, DeCinti said he very well could see a case settling because of evidence obtained as a result of discovery into a party’s Facebook, Myspace or other social media site.
He described the following scenario as a situation where social media could be the driving force of a plaintiff’s decision to avoid trial.
“He tells his lawyer he can’t do anything and then you see him on Facebook and he’s the drummer in a speed metal band,” DeCinti said.
There was one case, Largent v. Reed, out of Franklin County, in which defense counsel told the Law Weekly that the parties came to a resolution after the defendant “leveraged” the findings of a social media investigation.
Donald L. Carmelite of Marshall, Dennehey, Warner, Coleman & Goggin in Harrisburg represented defendant Jessica Rosko, accused of causing an auto accident that left plaintiffs
Jennifer and Keith Largent with “serious
and permanent physical and mental injuries.”
Following a defense motion, the court granted discovery, deciding there was no expection of privacy on Facebook.
As the judge put it: “Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”
But Carmelite, reached for comment last week, said the defense then
shared with the plaintiffs what it had
already found on one of their social media accounts and posed the question: “Do you really want us to get her password?”
The case then settled.
New York Appeals Court Weighs In
At least one appellate court has decided the discovery issue.
In Richards v. Hertz, the New York Supreme Court Appellate Division, Second Department, granted in camera review of one plaintiff’s entire private Facebook page, modifying a lower court’s order that both plaintiffs in the case turn over “‘every photo on Facebook’” showing both of them playing sports.
But there’s a catch.
The reason that case reached the appeals court was because of — in the words chosen by the New York State Bar Association, describing the state’s interlocutory appellate procedure — a “generous policy” on appellate review of non-final orders standing in “marked contrast” to the restricted right of federal courts and many states.
That policy allows litigants to reserve the right to appeal non-final orders.Pennsylvania doesn’t allow that.
For that reason and several others, e-discovery specialist and Law Weekly contributor Leonard Deutchman joined the attorneys in their circumspect sentiment as to whether a Pennsylvania appeals court would soon get the opportunity to talk Facebook.
“By the time something gets decided by an appeals panel,” Deutchman said, “I wonder what the technical landscape is going to look like then.”