Who is the fairest of all?

Remember when we all lived lives of desperate isolation?

Those were the days!

Now, we fall all over ourselves, liking the most inane things, all in a rush to pass judgment before the always-watching eye of our socially irrelevant networking universe.

To put this in its proper perspective, Ricky Waters, he formerly of the Philadelphia Eagles, virtually waxed Shakespearian when he lively torted “For Who, For What?”

Then from that mind-numbingly brilliant spittle of iconic genius, perhaps second only to “Alas, poor Yorick”, we individually strain with the maddening desire, nay complex, to turn simple acts of human indignity into newsworthy seminations.

And, in truth, this manic pressure to blanket computer screens with self-recognition turns us inward on the ultimate question of selfless worth, pocketball esteem, and whether loafers make more sense than tie shoes given their penchant for becoming untied.

So, which came first, the need to look in the mirror, or to like everything imaginable on Facebook?

Into this moronically mindless vacuum of self-importance enters the lipid inquisition of social media, overvalued and epitomized by Facebook, as well as a social host of wanabees, capitalizing on the theme of “to be or not to be”, meaningful beyond the short-limbed stride of survival and existence.

On this self-scripted stage, knowledge and awareness are claimed through association with substance, and relevance becomes conclusions unworthy of examination.

What the??

Yes, the point is no matter what we look like, what we think about, or who we associate with, the mirror, in this case social media and networking, is as seductive as the candle is to the moth, the relevance of which turns on whether or not the vaporous plume is admissible evidence at trial.

FACEBOOK

For some time now, Pennsylvania Courts have been struggling with defining the parameters within which things posted by those with personal injury claims, as well as others, are both discoverable and admissible at trial, begging very separate questions of access and authentication.

Since most of us have had some experience, without quantifying it by content or quality, with social media networking, to include the host of websites that have been begat by the first crude internet erection, MySpace, which is still in existence but clearly has a dubious viability in our Facebookian universe, to include the social media sites that we are all more familiar with, most prominently, Facebook, there being too many others to individually name, we should explore how our infinitely wise Courts are resolving the conflict between “privacy” and “disclosure”.

As to access, this being a summary, as it were, this element actually encompasses two levels, one being the level of access imposed by privacy settings that social media users can employ, to limit, or not, public access to personal postings, with the second level being imposed by procedural rules, adopted and imposed not only by Court systems, but also by professional organizations, like the American Bar Association and the Pennsylvania Rules of Professional Conduct, with there being a strict prohibition against “friending” without disclosing, as “friending” without a requisite disclosure, such as “I cannot wait to take your deposition”, is absolutely prohibited, and will result in “poisoned fruit”, likely to lead to dire consequences before any trial or discovery Court judge.

Not only should that not be done, but you had better not tell someone else to do it when you could not.

Fast becoming a really hot flashpoint of judicial review, a growing number ofPennsylvaniarulings are beginning to define social media boundaries in terms of accessibility and authentication.

I.                   Trail v. Lesko (Allegheny County):

This Decision was issued by the Honorable Stanley Wettick, an Alleghany County Court of Common Pleas judge with a national reputation on issues related to discovery in civil litigation matters.  Rulings of Judge Wettick on discovery issues have often been followed by otherPennsylvaniatrial Court judges deciding discovery matters.

In Trail, Judge Wettick went to great lengths to set forth an extensive review of Facebook’s background, as well as reviewing Decisions in other jurisdictions that impacted on Facebooking issues, particularly where related to civil Defendants seeking access to a litigant’s Facebook postings, although Wettick’s opinion and rulings have greater implication than simply limited to Facebook.

In Trail, the Plaintiff, through counsel, sought access to the Defendant’s Facebook postings, seeking to determine the Defendant’s whereabouts at the time of the accident, as well as to potentially identify witnesses that the Defendant might have been in contact with, as to who was at fault for the motor vehicle accident that was the subject of the lawsuit.

Since the Defendant had admitted, in several Court filings, that he was the driver of the vehicle involved in the accident, Wettick denied Plaintiff’s request, finding it not relevant to the issue for which the request was premised.

On a cross-court serve, Judge Wettick also denied the Facebook discovery request of the Defendant, who sought Facebook postings made by the Plaintiff, depicting him at a bar socializing and drinking at a party.  Wettick denied the Defendant’s request, as the Plaintiff had not made any claim that he was “bedridden”, nor were the photos being sought inconsistent with the Plaintiff’s injury claims.

Wettick also denied the Defendant’s request, reasoning that PA R.C.P. 4011 rendered the  request as “unreasonably intrusive”, as “the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case”.

II.                Gallagher v. Urbanovich (Montgomery County):

 In Gallagher, the Honorable William Carpenter of the Montgomery County Court of Common Pleas, in a ruling entered on February 27, 2012, Ordered a Defendant to produce his user name and password for his Facebook page, also Ordering that the Defendant could change his user name and password seven (7) days after compliance with the Court’s Order.

This ruling obviously imposes limitations on court-ordered access, although the Court’s Order does open the door for Facebook discovery to be a two-way street, such that it need not necessarily be limited to Defendant’s seeking information about Plaintiffs, but might also conversely result in a cross-court serve by the Plaintiff, seeking Facebook discovery of a Defendant.

III.       Offenback v. L.M. Bowman, Inc. (US DC-M.D.):

In Offenback, a Federal Middle District judge permitted the in camera review of a Plaintiff’s private Facebook page and postings, with the Court picking and choosing what articles and postings it found to be discoverable, and subject to disclosure.

Balancing privacy interests against the judicial policy behind discovery being “reasonably calculated to lead to discoverable evidence”, the potential exists, particularly in jurisdictions with clogged dockets, that this type of discovery procedure might potentially lead to longer delays in discovery being completed, at least to the satisfaction of the requesting party.

IV.       Largent v. Reed (Franklin County):

 For anyone seeking Facebookian discovery, this Decision authored by Judge Walsh inFranklinCounty, provides an outline and analysis as to why Facebook discovery should be allowed.

In Largent, the Plaintiff, when pressed for Facebook discovery claimed privilege, contending privacy.

The Court rejected Plaintiff’s privilege claim, raised in the context of an objection, with the Court ordering the Plaintiff to provide his Facebook user name and password, as requested by the defense through discovery.

Balancing privacy against disclosure, the Court ordered that the Plaintiff could change his Facebook login information twenty-one (21) days after disclosure to the defense.

Under Largent, the right to discovery was balanced against the claim of privacy and privilege.

V.                McMillen v. Hummingbird Speedway (Jefferson County):

 The McMillen Decision wasPennsylvania’s first foray into the Facebook matrix.  It was decided on September 9, 2010.

McMillen established thePennsylvania precedent that Facebook postings are discoverable, as the Plaintiff was ordered to disclose his Facebook user name and password.

The ruling in McMillen is tempered by two very elemental tenets, the first being the tension between privacy and discovery, a tension undercut by user elections, or failure to do so, as to privacy settings employed by social network websites, with the second being the critical importance that the information postings being sought must be relevant to the claims asserted and available defenses.

VI.       Piccolo v. Paterson (Bucks County):

 Piccolo, decided on May 5, 2011, involved a one-line Order by the Court, denying a defense Motion to Compel discovery of the Plaintiff’s Facebook page, in a civil case involving a facial scaring personal injury claim.

Apparent problems with the defense request included the defense seeking a Court Order, requiring the Plaintiff to accept a “friend” request from defense counsel.

Successfully opposing the Motion, the Plaintiff argued that the defense had been provided pre and post-accident photos of the Plaintiff’s face, arguing, albeit convincingly, that the defense request was “overkill”.

VII.     Arcq v. Fields (Franklin County):

Arcq is a December 7, 2011 ruling by the Franklin County Court of Common Pleas.

It involved the trial Court denying a Defendant’s Motion to Compel access to a Plaintiff’s private Facebook page, with the defense not having offered any threshold evidence that the Plaintiff had a Facebook page, and/or that if the Plaintiff did have a Facebook page, that access to it might result in revelatory evidence discrediting the Plaintiff’s claims of injury and disability.

VIII.       Kalinowski v. Kirschenheiter (Luzerne County):

In Kalinowski, the Plaintiff convinced the Court that the Defendant’s Motion to Compel the Plaintiff to provide access to Plaintiff’s private Facebook page was only intended to embarrass the Plaintiff, as the information being sought was relevant to the Plaintiff’s personal business, with the Plaintiff not making any claim for lost wages or business issues.

In denying the Motion, the Court did so without “prejudice”, potentially leaving that issue open to further inquiry by the defense.

IX.             Martin v. Allstate (Philadelphia County):

 Martin likewise involved a one line Order denying seeking access to Plaintiff’s private Facebook page, so ruling because the Court reasoned that the Defendant had failed to show that the Plaintiff’s deposition testimony and/or the Plaintiff’s public Facebook page would have resulted in revealing any evidence that would have been relevant to the claims of injury and discovery being made by the Plaintiff.

This ruling was entered by the Honorable William Manfredi of the Philadelphia County Court of Common Pleas.

SUMMATION

So, if the axiom “be careful what you wish for” packs any truth, there are clearly very discernable boundaries emerging in the universe of “you talking to me?”.

Yes, we are talking to you, but we better be ready for the following:

  • Do your homework first;
  • Meaning, that sources currently exist permitting pre-discovery, such that you should know, in advance, whether Court intervention is actually warranted;
  • Be prepared to offer a relevant reason for seeking this information;
  • Be prepared to limit the scope of the request, in terms of the length of time for which the request is sought;
  • Be prepared for all requests to be vigorously opposed, whether the opposition is feigned or real;
  • Secure corroborative evidence as a predicate to making the request, and;
  • Counsel your clients, that Facebook is a two-way street, with bad signage.

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By Kevin L. Connors

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).