Internet Law

Trial Courts Yet to Find Consistency in 'Facebook Race'

, The Legal Intelligencer

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Social Media Mashup

Originally Published Dec. 11, 2012

Editor's note: The following is the first of a two-part series on Pennsylvania courts' decisions on the discoverability of social media.

Highlighting the need for guidance from the state's appellate courts, a Monroe County judge's recent decision on a discovery motion into a woman's social media account appears to have deviated from the growing school of thought among Pennsylvania jurists.

A review of decisions coming from trial courts reveals a tight race between "discovery allowed" and "discovery denied." When one side pulls ahead, the other seems to closely gain ground. Right now, the Law Weekly's tally has Pennsylvania judges granting discovery into a social media site six times and denying it six times.

If there's been a common thread among courts landing on both sides of the issue — though not universal — it's the public-to-private rationale. Judges have, in most cases, granted access to a party's private account when something available on their "public" page indicates that more discovery is warranted, or denied for the same reason.

As Franklin County Court of Common Pleas President Judge Douglas W. Herman put it in Arcq v. Fields: "In essence, viewing relevant information on the public profile acts as a gateway to the private profile."

But in a decision last month, a Monroe County judge granted discovery apparently without such a showing, according to court filings by the parties involved. The judge said the plaintiff suing for personal injury has no expectation of privacy if she uses social media. The plaintiff, according to court records, had objected to an interoggatory regarding her use of social media.

In another recent decision, however, Indiana Court of Common Pleas Judge Thomas M. Bianco did endorse the growing line of reasoning, deciding the discovery motion in Simms v. Lewis based on the public showing threshold.

In Simms, a motor vehicle case, Bianco granted one defendant access to plaintiff Brittni Simms' "myYearbook" account because information provided by the defense on the publicly available portion of her account opened the gates of discovery to the rest of her social networking page.

According to the October opinion, Simms, who is suing for injuries suffered in a 2009 car accident, posted the following on her myYearbook at some point after the accident took place: "'Chillin with my girl tonight. were gonna do some Zumba Fitness :) so excited!!! HTC :p'"

Bianco pointed to one of the first known decisions in which a Pennsylvania judge granted discovery, Zimmerman v. Weis Markets, as particularly analogous to Simms. In Zimmerman, the plaintiff sought damages for lost wages, future earning capacity and pain and suffering. He alleged his ability to enjoy life's pleasures decreased and that his general health was impaired. In that case, the plaintiff also argued he was embarrassed by a scar on his leg, which was the result of a forklift accident, but was then shown on his Facebook wearing shorts, the scar plainly visible.

In Simms, Bianco said: "Attending a fitness class is relevant, as it directly relates to [Simms'] claim that she has suffered a severe injury and is deprived of the ordinary pleasures of life. Based upon the information contained in a post visible on her public page, it is reasonable to infer that the non-public portion of [her] account may contain additional relevant evidence."

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