Accords Delaying Definitive Take on Social Media Discovery?
Editor's note: The following is the second of a two-part series on Pennsylvania courts' decisions on the discoverability of social media.
For Pennsylvania attorneys who are following the state's body of law on discovery motions regarding social media, here's one thing to consider: While the law is not settled, many of the cases posing key questions of law have been.
What that means, according to attorneys interviewed, is that Pennsylvania practitioners could be waiting a good while before they receive definitive word from an appellate panel on the issue. The cases, many of which are personal injury matters, tend to settle. And if they do go to trial, an unfavorable pretrial discovery motion would not be the likely focus of an appeal, attorneys said.
Right now, the social media race is tied up in Pennsylvania, according to the Law Weekly's records, with Pennsylvania judges granting discovery into a social media site six times and denying it six times. If a standard has emerged, it's that a party must show something on its opponent's "public" page demonstrates his or her "private" page may lead to more admissible evidence.
But that standard is hardly unanimous, as evidenced in a recent case out of Monroe County where the judge ruled a plaintiff has no expectation of privacy on social media. In Mazzarella v. Mount Airy No.1, the judge apparently granted discovery without a public threshold showing, according to court filings by the parties involved.
So, the Law Weekly called around to attorneys in all of the cases of record that have featured so-called Facebook discovery motions to see if any were possibly headed to a higher court. Out of 12 cases reported on, at least seven have settled and three await trial.
And when the matters were resolved outside of court, lawyers typically reported the underlying discovery motion had nothing to do with it, though not always.
Take the matter of Kalinowski v. Kirschenheiter, in which a Luzerne County judge denied a defendant insurance company's request to gain access to the plaintiff's private Facebook and Myspace pages, but also ordered the plaintiff not to delete the websites or any of the content on them. That case settled earlier this month.
"There was no fear of Facebook in our decision to settle," said the plaintiff's attorney, Ann O. Farias of the O'Donnell Law Offices in Kingston, Pa.
"I'd like to have some appellate guidance," Farias said. "I don't know how likely it is."
According to plaintiffs attorney Scott B. Cooper, it's going to take "the perfect storm" for the issue to work its way up to an appellate court.
As Cooper sees it, here's how the issue could become ripe for appeal: A judge denies a pretrial discovery motion, blocking a party's access to its opponent's social media accounts. The party on the losing end of the discovery motion argues the discovery is necessary to reflect "true depictions" of their circumstances. (For example, defense counsel finds a picture of a woman enjoying life's pleasures found on one of her friends' Facebook pages that contradicts the woman's claims in court.) The case then must go to trial, the losing discovery party must lose at trial, and, on top of that, it must consider the discovery motion a viable argument on appeal. Then it may go up all the way, Cooper said.
In Cooper's mind, though, those circumstances reflect the very pitfalls of a "blanket rule" that may result from appellate review.
"I think the way the case law has developed, I think it's a common sense approach," he said. "Each case should stand and fall on its facts."
For example, many of the trial court decisions in Pennsylvania so far have dealt with a showing on one of the actual party's social media pages. But what happens when a defense lawyer, finding little success on the plaintiff's actual page, pores through those of the plaintiff's "friends" until he or she finds that one picture of the plaintiff needed to compel discovery?
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