Cyber Law

Plaintiffs Score a Pair of Wins in Social Media Decisions

, The Legal Intelligencer

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Originally Published Dec. 20, 2011

Two Pennsylvania courts have recently denied defense motions asking for access to plaintiffs' private social media pages, apparently evening the social media scoreboard and giving plaintiffs some much-needed case law to counter a trio of opposing decisions.

In one of the cases, a Franklin County judge denied an auto-accident defendant's motion asking for access to the plaintiff's social media pages because the request did not stem from information found on the plaintiff's public profile. It appears to be the first decision in this state to deal with social media discovery in which the defendant could not point to content available for anyone to see.

In the other case, a Luzerne County judge denied a defendant insurance company's request to gain access to its opponent's private Facebook and Myspace pages, but ordered the plaintiff not to delete the websites or any of the content on them.

The Franklin County decision, entered by President Judge Douglas W. Herman this month, and the Luzerne County ruling, which came without an opinion from Judge Joseph Van Jura, seem to buck a sprouting trend in which trial judges in this state had favored similar defense motions, albeit with distinguishing facts.

The decisions bring the score to 3-3, according to a review of similar cases covered by The Legal Intelligencer and the Law Weekly . Three courts have now ruled in favor of the party seeking discovery and three have found for the responding party. In every case, the party moving for discovery was the defendant.

In a four-page opinion in Arcq v. Fields , Herman distinguished the ruling from another recent decision out of Franklin County.

In Largent v. Reed , which came down last month, the defendant established a good-faith basis for requesting access to the plaintiff's private Facebook page because of information available on the public page — in that case, a status update about going to the gym and pictures of the plaintiff "enjoying life with her family."

The decision in Arcq becomes important because, absent such evidence to trigger discovery, the court has denied any private probe.

"In essence, viewing relevant information on the public profile acts as a gateway to the private profile," Herman said.

The ruling stems from an auto-accident in which plaintiff James A. Arcq has alleged defendant Robert R. Fields was negligent.

Arcq is seeking damages for continuing medical care, disfigurement, infertility and other ailments, Herman said.

He is suing Fields' employer, Groves US LLC, as vicariously liable, according to Herman.

At a deposition, Herman said, Arcq testified that he cannot partake in certain activities as a result of the collision.

At the same deposition, the defense said it "'believe[s] and therefore aver[s] that [Arcq]' is a member of social networking websites such as Myspace, Facebook, LinkedIn, Twitter and the like," Herman said.

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