The Legal Intelligencer
by Gina Passarella
May 24, 2011
A Northumberland County judge granted last week a defense motion seeking access to the private portions of the Facebook and MySpace accounts of a personal injury plaintiff, finding no privilege exists in Pennsylvania for information on private sections of social websites.
Common Pleas Court Judge Charles H. Saylor adopted the rationale of a Jefferson County, Pa., judge who ruled similarly last year in McMillen v. Hummingbird Speedway Inc. , an opinion Saylor said was the only published decision on the issue in Pennsylvania before his. Saylor's ruling comes just a few weeks after a Bucks County judge issued a one-paragraph order denying access to a plaintiff's Facebook page, finding McMillen didn't apply to the case before him, Piccolo v. Paterson.
In the Northumberland County case, Zimmerman v. Weis Markets Inc., Rane Zimmerman was suing his former employer, Weis Markets, after he injured his leg in a forklift accident while working. He sued the store for lost wages, lost future earning capacity, pain and suffering, scarring and embarrassment, according to Saylor's opinion.
At his deposition, Zimmerman said he never wore shorts because he was embarrassed by the scar on his leg from the accident. But in his public MySpace pictures, he was shown wearing shorts with his scar visible. He also discussed on the sites riding motorcycles and posted pictures of himself near his motorcycle.
Weis then filed a motion to compel discovery of the private portions of Zimmerman's Facebook and MySpace pages, arguing there may be other relevant information as to Zimmerman's damages claims on the private portions of those pages. The company sought the disclosure of Zimmerman's passwords, user names and login names to Weis' counsel.
Zimmerman argued in response that his privacy interests outweigh the need to obtain discovery material. He also suggested that, in the alternative, the court conduct an in camera review of the pages to determine what would be appropriate to share with the defense. In a footnote, Saylor "flatly rejected" the argument, saying it would be an unfair burden on the court.
Saylor instead agreed with Weis' argument that he adopt the ruling in McMillen.
"This court agrees with the rationale of the opinion in McMillen , authorizing access for the reasons that no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal," Saylor said.
The judge also relied on a 2010 decision out of the New York Supreme Court for Suffolk County, Romano v. Steelcase Inc . The defendant in Romano sought access to the plaintiff's current and historical Facebook and MySpace pages, including deleted pages, based on the argument that the plaintiff had posted information that was inconsistent with her position in the personal injury case.
As is the case in Zimmerman , the plaintiff in Romano said she could no longer participate in certain activities and her enjoyment of life was impacted. Even though she said she couldn't travel, her Facebook pictures showed her in other states, Saylor said.
The Romano court granted the defense's motion to compel and, with the court having little New York case law to rely upon on the issue, looked to a Canadian case for guidance along with a case out of Colorado, Saylor said.
The Romano court said that "'to deny defendant an opportunity [to have] access to these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone plaintiff's attempt to hide relevant information behind self-regulated privacy settings,'" according to Saylor's opinion.
Saylor pointed out that the Romano court noted the Fourth Amendment's right to privacy protects people, not places.
It was Zimmerman who placed his physical condition at issue and Weis therefore has a right to discovery regarding it, Saylor said. Zimmerman voluntarily posted the information to share with others and can't now claim a reasonable expectation of privacy, the judge said.
"By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge," Saylor said. "With the initiation of litigation to seek a monetary award based upon limitations or harm to one's person, any relevant, non-privileged information about one's life that is shared with others and can be gleaned by defendants from the Internet is fair game in today's society."
Developing Case Law
If anything can be gleaned from the small body of case law already in existence, it is that postings on social networking sites that are inconsistent with statements in discovery often result in the private portions of those sites being ruled discoverable
In Piccolo, plaintiff's counsel Benjamin Lipman argued his client's case was distinguishable from McMillen because there were no such allegations in his client's case that she posted one thing and said another.
According to court documents, Sara Piccolo filed an action against the defendants after she was injured in a one-car accident while a passenger in a car driven by defendant Lindsay Paterson. Paterson conceded liability but the case is ongoing because of a dispute over Piccolo's damages.
According to the defense motion, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a "neutral friend request" to Piccolo so that he could review her Facebook postings.
Lipman ultimately denied the request, responding that the "'materiality and importance of the evidence ... is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes'" Piccolo, according to the defense motion.
In support of its argument, the defense cited McMillen . It argued access to Piccolo's Facebook page would provide necessary and relevant information related to the claims by Piccolo.
In Piccolo's response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo's deposition about the pictures she posted on Facebook, not any textual postings. He said Paterson had already been provided "as complete a photographic record of the pre-accident and post-accident condition" of Piccolo as she "could reasonably have a right to expect in this case."
Lipman said Piccolo conceded that her Facebook account "is probably not protected by any evidentiary privilege that has been recognized in Pennsylvania." But he cited Rule of Civil Procedure 4011(b), which precludes discovery that would cause unreasonable annoyance, embarrassment, oppression or burden.
Defense counsel Andrew P. Moore of Moore & Riemenschneider in Abington, Pa., said a plaintiff with a scar on her face would present herself differently in pictures online than she would in front of a jury and he felt getting access to those pictures was akin to surveillance.
In McMillen , President Judge John Henry Foradora ruled plaintiff Bill McMillen had to turn over his passwords and usernames to his social networking account to defense counsel. The judge also barred McMillen from deleting or altering his existing pages.
McMillen was suing Hummingbird Speedway after he sustained injuries when rear-ended by another driver in a cool-down lap following a stock car race. On the public portions of his Facebook account, McMillen commented about fishing trips he went on and his attendance at the Daytona 500.
Hummingbird Speedway filed a motion to compel access to his accounts to see if he made any other statements that contradicted his position in the lawsuit, according to the opinion.
McMillen asked the court to deem communications with private friends on social networking sites confidential, but Foradora said no "social network site privilege" has been adopted by the state's legislature or courts.
The judge said reading the privacy policies of these sites "should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else."
Stephen E. Geduldig of Thomas Thomas & Hafer represented Weis Markets in Zimmerman . He said clear contradictory statements on a Facebook page certainly make it easier for a judge to compel discovery of the site, but he thinks discovery should apply in any case because some plaintiffs may have from the start completely private pages. If the postings are true and comport with a plaintiff's arguments in the lawsuit, there will be nothing for the defense to glean from them upon discovery, he said.
Geduldig said discovery of these sites cuts both ways and should apply to defendants as well.
He said this is a developing area of law that is increasingly arising.
He has two other cases that involve this issue that are set for argument soon.
Plaintiffs attorney Scott Cooper of Schmidt Kramer said he hasn't had discovery of social networking sites pop up in his cases yet, but that doesn't mean he isn't advising plaintiffs on how to handle these issues.
He said his gut reaction is that these pages are probably discoverable to a certain extent, but the problem is deciding where to draw the line.
Cooper asked whether pictures of a plaintiff with his kids could be relevant to every type of potential lawsuit.
"I can see this being a huge issue," he said of discovery in these areas. Cooper said his biggest concern would be defendants abusing this as a way to wear down plaintiffs.
Geduldig said he can see how plaintiffs would be concerned that a defendant was using discovery as a "fishing expedition." That was Zimmerman's argument for an in camera review. But Geduldig said he's not sure he would want a court determining what is important or relevant to a defendant's case.
When you've been seriously injured, you have questions turn to Schmidt Kramer and speak with a personal injury lawyer at our law firm today. Our Pennsylvania injury attorneys will walk you through the legal process and get you back on your feet. Call (717) 888-8888 to speak with our legal team today.