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Trial Courts Yet to Find Consistency in 'Facebook Race'

, The Legal Intelligencer

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'No Clear Consensus'

For Scranton attorney Daniel E. Cummins, who has been keeping track of state court decisions on Facebook motions on his blog, TortTalk, and is a regular columnist for the Law Weekly, the recent cases highlight the need for appellate review in Pennsylvania. While the public-to-private standard has been adopted more often than not, it is certainly not set in stone, Cummins said.

As Cummins put it: "There's no clear consensus yet. We're going to continue to see motions and continue to see conflicting decisions."

Cummins said even issues such as how courts implement discovery orders — how, and for how long, should a party have access to their opponent's social media accounts? — are poised for review.

In Simms, for example, Bianco ordered the parties to schedule a conference at which Simms would access her myYearbook account in front of defense counsel.

Simms' attorney, Mark E. Milsop of Berger and Green in Pittsburgh, said the judge's decision to schedule the conference with attorneys present highlights the need for safeguards in granting social media discovery motions.

"I think that's important," Milsop said. "Defense attorneys should not have the right to have unfettered access to an injured person's personal information."

Then again, Milsop said the entire idea of allowing a litigant to probe his or her opponent's social media accounts is "highly invasive" and therefore should be granted sparingly.

"Really, the whole Facebook thing should not be granted as a general matter," he said. "To me, it's like telling someone they can walk around your house and see what pictuers you have hanging around and read your love notes and Christmas cards."

What Next?

Perhaps the biggest issue is the need for a formal adoption of the standard under which discovery may move forward, such as the threshold showing of publicly available and relevant information.

While Cummins said "the trend appears to be headed in that direction," referring to that threshold, cases like Mazzarella and Kalinowski v. Kirschenheiter are examples of decisions that have seemingly gone against the grain.

Kalinowski was actually a discovery denial. In the case, Luzerne County Court of Common Pleas Judge Joseph Van Jura issued an order without an opinion blocking a defendant insurance company from accessing a personal injury plaintiff's social media pages, albeit telling the plaintiff not to delete his accounts.

The plaintiff had been shown in pictures and event invitations that seemed to meet the public threshold utilized by other courts.

For that reason, practitioners are eager for appellate guidance.

"They're all over the place," added Bednarz, referring to decisions from Pennsylvania courts of common pleas.

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