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Discovery of Facebook And Other Social Media In Civil Cases Still Uncertain

Posted on Dec 17, 2012

From the December 17, 2012 Pittsburgh Post-Gazette:

By Ben Present / The Legal Intelligencer

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.

This decision – and others involving the social media and online privacy realms – highlight the need for guidance from the state’s appellate courts.

A review of decisions coming from trial courts reveals a tight race between “discovery allowed” and “discovery denied.” To date, the 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 Common Pleas President Judge Douglas W. Herman of Franklin County put it: “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 a probe of her social media usage.

And in another recent decision, Indiana Common Pleas Judge Thomas M. Bianco endorsed 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, Judge 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, Ms. 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. We’re gonna do some Zumba Fitness 🙂 so excited!!!”

In Simms, Judge Bianco said: “Attending a fitness class is relevant, as it directly relates to [Ms. 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 nonpublic portion of [her] account may contain additional relevant evidence.”

The judge denied requests to gain access to Ms. 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.”

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

Judge 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 wrote: “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. … At this point, the information requested is not a privacy violation.”

For Scranton attorney Daniel E. Cummins, who has been keeping track of state court decisions on Facebook motions, 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, Mr. Cummins said.

“There’s no clear consensus yet. We’re going to continue to see motions and continue to see conflicting decisions.”

Mr. 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.

Ben Present: [email protected] or 215-557-2315. To read more articles like this, visit

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