PA remains a hotbed of social-media discovery disputes

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I’ve been slacking, folks.

Not since November have I blogged about a defendant’s motion to compel a motion to compel an individual’s social-media content. Since then, several more Pennsylvania courts have weighed in on this burgeoning area.

I’m sorry to each and every one of you. I have let you down. Will you ever stop judging forgive me? 

Oh, let’s kiss and make nice. I’ll get you caught up on the social-media-litigation goings-ons after the jump…

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Daniel E. Cummins at TortTalk.com reported here that a Luzerne County judge denied a defendant’s request to access a plaintiff’s Facebook and Myspace pages. Philip Miles at Lawffice Space has the you-must-see-them-to-believe-them details:

In Kalinowski v. Kirschenheiter and National Indemn. Co. (Luzerne Cty.), the defendant argued that he saw pictures and posts on the publicly accessible portions of the plaintiff’s social media accounts that warranted further discovery. The posts showed the supposedly injured plaintiff lounging on a bar stool in a pimp outfit, advertised a lingerie party at a bar the plaintiff owned, and promoted a going away party for him that promised to be “a night he WON’T REMEMBER!!”

The plaintiff argued that the pimp picture was pre-injury and the content cited by the defendant served no purpose other than to embarrass the plaintiff. The plaintiff also emphasized that none of the content directly impeached any of his testimony.

The judge denied the motion to compel production of the plaintiff’s Facebook and MySpace passwords. But, the order also directs the plaintiff not to delete any of the present content. So, the door remains open to future social media discovery.

Jennifer Ellis blogged here about another case from Franklin County about a somewhat unique set of circumstances surrounding a defendant’s motion to compel:

The newest case finding against access is Arcq v. Fields. That case is a bit different from the others we have seen, because in addition to having a personal account, the plaintiff has a public page for his bar. Keep in mind that accounts are for individuals and pages are for companies or for fans of famous people. Pages are by their nature meant to be public. The page contained information that the defense argued showed the Arcq in a light that was relevant to the case. Arcq argued that the page was mere advertising and not relevant to Arcq himself. The judge agreed with Arcq but also required Arcq to preserve all data currently contained within his accounts.

Then, late last month, the Philadelphia Court of Common Pleas denied a defendant’s motion to compel a plaintiff automobile-accident victim to turn over her Facebook password. Michael Schmidt at the Social Media Employment Law Blog has the details:


In Martin v. Allstate, plaintiff claimed that she suffered personal injuries after being struck by a vehicle, and the defendant sought to compel the production of plaintiff’s Facebook password. According to reports, however, defendant’s attorneys never asked specific questions at the deposition that would elicit information on plaintiff’s particular usage of Facebook, or the nature (or frequency) of the information she posted. Plaintiff argued in court that the defendant was merely seeking to perform “an untargeted search” of the social networking site. The court in Martin agreed, and refused to provide the requested Facebook access.

What do these cases all have in common? 

Social media or not, courts permit discovery when reasonably designed to lead to the discovery of admissible evidence. Want access to certain Facebook content after first establishing that the plaintiff may have social-media information that relates to her claims? Carefully tailor that discovery request and you’re golden. However, when the party seeking discovery is merely fishing — e.g., a defendant seeking Facebook information just because the plaintiff has a Facebook account, courts draw the line.

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