In the most recent of a growing body of opinions on social media discovery in Pennsylvania trial courts, a Lackawanna County judge has denied a husband and wife’s motion to compel the Facebook username and password of a paralegal working for a title insurance company the couple is suing.
Court of Common Pleas Judge Terrence R. Nealon said plaintiffs Thomas and Wendy Brogan’s argument underlying their discovery motion relied on the "faulty premise" that two people must be Facebook friends in order to exchange Facebook messages with each other, citing a Facebook Help Center entry called "Sending a Message."
The ruling on the novel issue comes in a case that Nealon said has accounted for nearly 40 percent of the discovery appeals in Lackawanna County and has gotten to the point where Nealon was specially brought on to the case to resolve discovery disputes, when Lackawanna County cases typically use a special trial master for discovery questions.
In a 22-page opinion, Nealon also cited a majority of the decisions handed down by Pennsylvania trial judges (at least of all those known by Pennsylvania Law Weekly) and several decisions from other jurisdictions in ruling on the discovery issue.
At the end of the day, though, it was the same rules of evidence and discovery that Nealon said should guide the gates of discovery in resolving requests to access a party’s social media page or account.
For example, Nealon cited Pennsylvania Rules of Evidence 401, 403 and 901 in outlining authentication and relevancy standards and the test to determine probative value versus the danger of prejudice.
In discussing whether the plaintiffs met the "reasonable particularity" threshold, he cited Pennsylvania Rule of Civil Procedure 4011(b) for the proposition that "a discovery request seeking carte blanche access to private social networking information is overly intrusive" and "would cause unreasonable embarrassment and burden."
He said the plaintiffs fell short in their requests.
The judge also endorsed the standard that has emerged among Pennsylvania trial judges in resolving Facebook discovery requests — that is, if useful information is available on a party’s "public" profile, then his or her opponent has standing to access the profile’s private portions.
"Under the Pennsylvania Rules of Civil Procedure, a party is not entitled to discovery unless the requestor first demonstrates that the information or material sought is relevant or ‘reasonably calculated to lead to the discovery of admissible evidence,’" he said. "Consistent with that firmly established discovery maxim, a party may obtain discovery of private Facebook posts, photographs and communications only if the electronically stored information is relevant, and the party may satisfy that relevancy requirement by showing that publicly accessible information posed on the user’s Facebook page controverts or challenges the user’s claims or defenses in pending litigation."
"To that extent, the resolution of social media discovery disputes pursuant to existing rules of civil procedure is simply new wine in an old bottle," Nealon added.
The discovery dispute, one of several in Brogan v. Rosenn, Jenkins & Greenwald surfaced after the Brogans deposed defendant Conestoga Title Insurance Co.’s former director of claims and recovery, Gregory L. Amand, who testified that he had communicated with a Conestoga paralegal, Rebecca Brown Breault, via Facebook.
Amand, according to Nealon, testified that he and Breault exchanged brief, private messages on Facebook in which Breault told him to contact Conestoga’s legal counsel before his deposition to discuss the Brogans’ title insurance claim, which Conestoga had denied. Amand further testified that he did not take Breault’s advice.
Breault, Nealon said, was asked at a deposition the day after Amand’s to identify which of her colleagues she was friends with on Facebook. She did not point to Amand.
She was not asked, Nealon further noted, whether she had communicated with Amand on Facebook regarding the subpoena he received to testify about the Brogans’ claim.
Scranton attorney Michael J. Kenny, who is representing the Brogans, said Nealon’s opinion on the Facebook issue caught him somewhat off-guard because he considered the issue to be "moot" after counsel for Conestoga produced the messages after oral argument of the Facebook discovery motion. (Nealon acknowledged that in his opinion.)
Kenny said he only asked for broad access to Breault’s Facebook because the defense was not cooperating, but said his main request was always the messages.
"If they had given me those [messages], we would not be here arguing," Kelly said, referring to the Facebook discovery battle. "I didn’t care; the reason I was looking for broad-ranging access was because no one was cooperating with me."
Conestoga’s attorney, Stephen G. Bresset of Bresset & Santora in Honesdale, Pa., did not return a call requesting comment.
In litigation dating back to 2008, the Brogans sued their former counsel, attorney David F. Chuff, and Rosenn, Jenkins & Greenwald, Chuff’s former law firm, along with title searcher Anthony J. Popeck and Conestoga, the title insurer.
According to Nealon’s account of the plaintiffs’ claims, the Brogans purchased a property that, unbeknownst to them, had a utility easement for a 42-inch water main passing through the property. They claimed the Pennsylvania Gas & Water Co. had a duly recorded easement barring any structures within 30 feet of the easement. As a result, the Brogans claimed, according to Nealon, they have to build their sewer and water lines at least eight feet beneath the water main.
Setting forth causes of action for legal malpractice, negligent supervision and negligence, they claimed Chuff, Rosenn Jenkins and Popeck negligently failed to discover the easement.
They also claimed breach of contract, bad faith and negligent misrepresentation by Conestoga.
Chuff and Rosenn Jenkins have responded in court filings that they hired Popeck to search the title and therefore may not be liable for his alleged failure to discover it.
Popeck, Nealon said, alleged he discovered an "’easement situation’" and told Chuff and Rosenn Jenkins about it, whom he claimed then informed the client. The Brogans, ignoring the advice of their attorneys, Popeck claimed, closed the property transaction anyway.
Conestoga admitted it issued a title insurance policy, but denies the Brogans’ title defect is covered by its terms.
According to Nealon, despite its "relatively straightforward and uncomplicated nature," the case generated nearly 40 percent of all de novo discovery appeals in Lackawanna County. Nealon said only 28 de novo discovery appeals were filed in the county in 2011. Of those 28, the Brogans filed 10 and Conestoga filed one.
Nealon said his involvement in the case came after two of the defendants — Rosenn Jenkins and Chuff — moved for the assignment of a judge for discovery proceedings, although special trial masters usually handle discovery matters in that county. In their motion, the defendants expressed concern the parties had become "’embroiled in seemingly endless discovery battles.’"
Lackawanna County Court of Common Pleas President Judge Thomas J. Munley appointed Nealon to hear and rule upon all discovery motions in the case in an order in January 2012, Nealon said.
Since Nealon’s appointment, the Brogans have filed 24 more additional discovery motions and Popeck and Conestoga have each filed motions for protective orders to bar the plaintiffs from pursuing certain pieces of discovery.
Kenny, the Brogans’ attorney, said the protracted discovery battle came only after Rosenn Jenkins turned over privileged information from the Brogans’ file to co-defendants and then sought to invoke attorney privilege regarding that correspondence.
Among other issues, that is.
He acknowledged the defendants’ position, as noted in Nealon’s opinion, that he is on "fishing expeditions," but added: "Every time I go on an expedition, I find another little tiny piece of information."
James J. Wilson of Marshall Dennehey Warner Coleman & Goggin in Scranton is representing Rosenn Jenkins and Chuff. Wilson declined to comment.
David R. Cherundolo, who is representing Popeck and his employer, SBP Abstracting, did not return a call.
(Copies of the 22-page opinion in Brogan v. Rosenn, Jenkins & Greenwald, PICS No. 13-0950, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •