Court bars Facebook "friending" in discovery

May 18, 2011
By Eric B. Meyer on May 18, 2011 6:00 AM | | Comments
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If, in a pending civil action, the defendant requests to Facebook "friend" the plaintiff in order to learn more about the plaintiff's claims, must the plaintiff accept the friend request?

This is precisely the issue that a PA Court of Common Pleas recently faced.

So, what happened? Find out after the jump.

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Go ahead and ignore that Facebook "friend" request.

Gina Passarella of The Legal Intelligencer has the scoop on this:

In Piccolo v. Paterson, Judge Albert J. Cepparulo issued a one paragraph Order denying the motion to compel filed by defendants Lindsay S. Paterson, Lee Anne Paterson, Linsey Paterson and Allstate Insurance Co.
The defendants wanted access to the photos of plaintiff Sara Piccolo that she posted of herself on the social networking site.
According to court documents, 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 the Facebook postings Piccolo testified she made every day.
...
Counsel sent Piccolo's attorney...a letter in September 2010 asking for Piccolo to accept a friend request from the defense.
[Piccolo's attorney] 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.
It is unclear, based on the Order, why the court denied the defendants' "neutral friend request" -- whatever that is. But, I'm guessing that the court viewed the defendants' discovery request as an improper fishing expedition.
Pigs get fed and hogs get slaughtered.
When I'm craving a pizza with pepperoni and mushrooms, I order a pizza with pepperoni mushrooms. I don't order a pizza with the works.
So, if I am representing a defendant and I believe that the plaintiff has postings and photos on Facebook that relate to a particular event or issue relevant to either the plaintiff's claims or my client's defenses, I carefully tailor my document request to obtain those items -- not the kitchen sink. 
For example, I might start with a request for all online profiles, postings, messages (including, without limitation, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that refer or relate to Issue X or Event Y.
*** A plaintiff would also have a tough time convincing a court that requests for Facebook content referring or relating to: (a) the allegations set forth in the complaint; or (b) any facts or defenses raised in the answer, are overly broad. ***
It is when parties make overly broad discovery requests and, thereby engage in fishing expeditions, that courts get wary. A "neutral friend request" -- whatever that is -- presumably would have given the defendants carte blanche access to EVERYTHING on Piccolo's Facebook page. And although this would provide the defendants with access to potentially relevant data, it would also allow the defendants to view lots of irrelevant, personal information about Piccolo. Therefore, I can understand why the court would have denied defendants' request to friend the plaintiff.
What if the shoe were on the other foot? 
What would happen if Piccolo believed that all three of the individual defendants and four of Allstate's representatives had potentially relevant information on their individual Facebook pages. Maybe Piccolo thought that these seven people were discussing either her or her clams? Would the defendants want to allow the plaintiff to have open access to all content on seven Facebook accounts? Exactly. That's not to say that parties should be permitted to withhold discoverable information. If any of the parties possess or otherwise exercise custody or control over discoverable online (or other) information, it should be produced, if requested.
But remember, while social media is a game changer by vastly expanding the amount of potentially relevant information, parties must operate within the bounds of the rules of civil procedure. Fishing expeditions will never be countenanced, no matter the media.