Daniel E. Cummins.
Over the past year, the Pennsylvania state trial and appellate courts have continued to grapple with issues pertaining to social media discovery as well as the admissibility of social media evidence at trial.
Discoverability of Social Media Content
In Kelter v. Flanagan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Monroe County Judge David J. Williamson followed the developing common law that permits a party access to another party’s private social media pages only when it has been first established that information relevant to the litigation can be seen on the public pages of that profile. In Kelter, Williamson granted a defendant’s motion to compel a plaintiff to provide the defendant’s counsel with her Instagram account log-in information in order to allow for further discovery of the information on that profile.
This case arose out of a motor vehicle accident. According to the opinion, the plaintiff initially testified at her deposition that she did not maintain any social media accounts. When confronted with proof to the contrary, the plaintiff then admitted that she maintained an Instagram account and asserted that she had allegedly misunderstood the question presented.
Defense counsel then reviewed posts from the plaintiff’s Instagram account from the time period shortly after the accident that were available for public access on the plaintiff’s Instagram account. According to the opinion, those posts seem to indicate that, despite the plaintiff’s claims of limitations following the accident, the plaintiff had engaged in vigorous physical activity both before and after the accident, such as references to shoveling snow and going to the gym.
When the plaintiff declined to provide any additional Instagram account information, the defense filed this motion to compel, which, as noted, was granted by the court.
The court ruled in this fashion given that the defense had made the required threshold showing that the public pages on the plaintiff's profile suggested that more information may be found on the private pages of the same profile.
In granting the defense limited access to the private pages of the site for discovery purposes the court ordered that the defense not share that information with anyone not related to the case. The court's order further mandated that the plaintiff would not remove or delete any content from that account.
Confirming that there is a split of authority on this issue among the trial courts of Pennsylvania, a contrary result was handed down in the recent Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).
The Allen case arose out of a plaintiff's alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.
During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.
The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff's social media profiles.
In his detailed opinion, Judge Craig Dally of Northampton County provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down around the commonwealth by various county Courts of Common Pleas as well as by courts from other jurisdictions.
No Pennsylvania appellate court decision was referenced by the Allen court as there are apparently still no such decisions to date on this emerging issue.
In his opinion, Dally noted that the defense had pointed out discrepancies between the plaintiff's deposition testimony regarding her alleged limitations from her alleged accident-related injuries and the photos available for review on the public pages of the plaintiff's Facebook profile depicting the plaintiff engaging in certain activities.
Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff's public pages to allow for discovery of information on the plaintiff's private pages.
In a footnote, the court emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.
The court additionally noted that, in any event, "it would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party's social media account by requiring the responding party to turn over their username and password, as requested by the defendant in this case." The court found that this type of access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a request for discovery that was not properly tailored with reasonable particularity as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant's motion to compel was denied.
As such, it appears that Dally was generally opposed to the notion that discovery should be allowed into the private areas of parties’ social media sites and, as such, he tailored his opinion to secure this desired result.
The above recent trial court cases on the discoverability of social media information continues to confirm that, in the absence of appellate guidance on the issue, there will be uncertainty as to whether a particular Court of Common Pleas in a given county will allow for further access of a social media site in response to a motion to compel.