A Snapshot of Pennsylvania Social Media Cases—Winter 2011

An Overview of the State of Social Media Evidence in Pennsylvania—Winter 2011 Update

The law of social media evidence in Pennsylvania continues to develop. To date, the focus remains on civil matter, discovery issues. Issues of authentication and issues in criminal matters (such as resistance by social media providers citing the Stored Communications Act to defense access to social media for impeachment) remain open. This article serves as an update to A Snapshot of Social Media Cases in Pennsylvania—Summer 2011.

Recent Social Media Discovery Cases

No appellate decision directly addresses social media discovery issues. Several Pennsylvania trial court opinions define the emerging rules related to civil matter discovery. In the civil context, the emerging rule seems:

  1. if an item is at-issue in the matter AND
  2. a party placed the item at-issue AND
  3. a review of publicly available social media content indicates potentially relevant material in the social media account related to the item AND
  4. the social media material is not privileged THEN

the social media content is probably discoverable.

Courts continue to wrestle with the issue of privacy in social media content. See commentary at DeSoto-Thinking-in-an-iPad-World: Another Pennsylvania Social Media Case—Largent v. Reed, Etc.. Item 3 (above) indirectly addresses privacy issues by limiting “fishing expeditions.” In other words, before compelling production of social media materials, the proponent must provide some evidence from the publicly available materials to indicate that the additional social media evidence may be relevant to the matter.

Remedies for the scope of compelling production remain unsettled. For example, in Largent v. Reed, the court not only compelled production but ordered the opponent to provide unlimited access to the social media account (turning over password and user name). While the facts are unclear in the case, such a sweeping remedy at least raises questions of proportionality and overreaching. Counsel might consider the strategic implications of such a sweeping remedy when flatly resisting production. Unfortunately, such a broad remedy might encourage excessive production demands. Thus, this issue remains unsettled.

Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 86914, Civil Action No. 09-4870 (E.D.Pa., Aug. 4, 2011)

District Court denied motion to preclude social media evidence in a civil action. Plaintiff sued the arresting police officer for violation of Constitutional rights and emotional distress. [*1–*2]. Defendant sought introduction of social media materials to rebut the Plaintiff’s claims of emotional distress. [*2&ndash*4] The court recited that when the Plaintiff places a condition at-issue (here, mental state), the Defendant may introduce MySpace social media evidence to rebut the claim. [*7–*10]

Kalinowski v. Kirschenheiter, No. 2010-06779 (Luzerne Cty. C.C.P, Aug. 8, 2011)

No opinion. Court order denying motion to compel production of social media (Facebook and MySpace) and ordering no-destruction of social media content. Note: Date on Judge’s Order is Aug. 8, 2011, but Prothonotary stamp is Nov. 18, 2011.

According to Defendant Memorandum in Support of Motion to Compel, (Jul. 6, 2011) (hereafter, Def.Mem.1), Plaintiff sought personal injury damages after a motorcycle accident. [Def.Mem.1, 2]. Defendant sought both 1) passwords for Plaintiff’s personal and business social media accounts and 2) signatures on authorizations to release information directly from the social media providers. [Def.Mem.1, 1-2]. Defendant alleges publicly available information on the social media sites indicates additional relevant information may be contained in the accounts. [Def.Mem.1, 6-10]. (The Defendant appropriately notes a serious problem related to social media purveyors who hide behind the Stored Communications Act. Defendant states that Facebook flatly refuses to respond to subpoenas. [Def.Mem.1, 4])

Plaintiff’s Brief in Opposition to Motion to Compel (hereafter, Pl.Mem.1) interestingly justifies the resistance to the production of passwords and to the signing of authorizations because the publicly available social media pages already contain adequate impeachment evidence as purportedly sought by the Motion to Compel. [See Pl.Mem.1, 3-4] That is, the Plaintiff maintains that while the Defendant referred to public pages in support of the Motion to Compel, those pages provide adequate impeachment evidence rather than serving as a segue to broad, unrestricted access to the Plaintiff’s social media accounts. Plaintiff further distinguishes the typical litany of cases (Zimmerman, Hummingbird Speedway, and Piccolo) because the Plaintiff maintains the public information in this case is not direct impeachment evidence. [Pl.Mem.1, 6-7].

Kalinowski introduces a compelling limitation on broad, sweeping demands for production. That is, even if the predicate relevance inquiry is met (public pages indicate potential additional material) and even if a party placed the topic at-issue, the proponent of production is not entitled to unfettered access to the opponent’s social media materials.

See also, Ben Present, Plaintiffs Score a Pair of Wins in Social Media Decisions, The Legal Intelligencer (Dec. 20, 2011) (addressing Arcq v. Fields and Kalinowski v. Kirschenheiter).

Largent v. Reed, No.2009-1823 (Franklin Cty. C.C.P., Nov. 8, 2011) (slip op.)

Motion to compel production of Facebook materials granted. Compare with Arcq v. Fields.

In a personal injury action, the Plaintiffs sought damages for permanent physical injuries, pain and suffering, and loss of consortium. [*2] The Defendants provided evidence of photographs posted to the Plaintiff’s publicly available Facebook account purportedly conflicting with the claims. [*5–*6] Plaintiff resisted production of Plaintiff’s Facebook username and password. [*6]

The court concluded:

  1. the Defendant made out a good faith request for the materials because the publicly available materials purportedly conflicted with the Plaintiff’s claims in the case [*8];
  2. the publicly materials were relevant because the materials purportedly conflicted with the claims in the case [*8];
  3. courts narrowly construe privileges in Pennsylvania and social media communications are not confidential and thus not privileged [*9]; and
  4. there is “little privacy on a social media networking website.” [*10 (emphasis in original)].

Interestingly, the court also concluded that the Plaintiff was not protected from disclosure by the Stored Communications Act (18 USC 2701 et seq.) because the Plaintiff was not a statutorily enumerated entity. [*10–*12]. While the opinion is unclear, apparently, the Plaintiff in part resisted production by claiming the Stored Communications Act prohibits such production—a novel defense.

The court justified the sweeping remedy (full access) by concluding the Plaintiff placed issues at-issue, the Facebook materials are not private or privileged, and that the production will not cause unreasonable embarrassment. [*12–*13] Note, the sweeping remedy was seemingly predicated on the conclusion that social media materials are not private. [See *12&ndash*13].

See additional, detailed commentary at DeSoto-Thinking-in-an-iPad-World: Another Pennsylvania Social Media Case—Largent v. Reed, Etc..

Arcq v. Fields, No. 2008-2430 (Franklin Cty. C.C.P., Dec. 8, 2011) (slip op.)

Motion to compel production of Facebook materials denied.

In a personal injury action, Plaintiff sought damages for injuries from an automobile accident. [*1]

Notably, the court distinguished this case from others because the Defendant failed to provide any predicate, public-profile information indicating that a social media profile might contain other information at-issue[*2–*3]. The court concluded that “it is necessary that the defendant have some good faith belief that the private profile may contain information.” [*3 (emphasis in original)]. (The court further distinguishes Largent v. Reed, also in Franklin County, on a similar basis. [*3–*4])

Interestingly, the opinion indicates that the Defendant lacked the predicate proof in part because the Plaintiff refused to disclose social media activity as requested by the Defendant in interrogatories. [*1, *1 n.1, *3, *3 n.2].

Cases Involving Social Media in Employment Contexts

Social media poses challenging issues for both employers and employees. A recent unpublished case should make employees more carefully assess employer social media policies.

Wright v. Unemployment Comp. Bd. of Review, 2011 Pa. Commw. Unpub. LEXIS 738 (Sept. 2, 2011) (unpublished)

The Commonwealth Court upheld the Unemployment Compensation Board of Review’s denial of Unemployment Compensation benefits. The employee seeking benefits took a photograph of her employer’s client using a cell phone and posted the photograph to Facebook. Use of a cell phone, taking photographs, and social media use during work hours were all against the employer’s written policies. The court agreed that the employee’s actions constituted “willful misconduct” and thus the terminated employee was ineligible for Unemployment Compensation Benefits.

Interim Conclusion: Social Media Evidence Will Remain Unsettled for the Near Future as the Most Serious Issues Have Not Yet Been Raised

Social media lures in litigation. Pennsylvania courts continue to refine the discovery implications of social media materials. A general rule slowly emerges. But, refinements such as limiting the scope of production and recognizing some degree of reasonable subjective and objective expectations of privacy in social media content remain extant. Blanket statements that social media is not private grow increasingly inconsistent with objective and subjective expectations of privacy. (See DeSoto-Thinking-in-an-iPad-World).

Furthermore, the cases hint at serious problems such as social media provider claims that the Stored Communications Act prohibits disclosure of social media materials. While in a civil context this is an annoyance, in a criminal context, particularly for defendants, this position raises serious Constitutional questions (note: government entities can freely obtain such access and may do so without a warrant in some cases).

The ethical and criminal implications of suggesting that a party destroy or remove evidence also loom. (I raised this issue at a recent CLE that I delivered.) Ethical Rules 3.4 Fairness to opposing party and 3.8(d) Special Responsibilities of a Prosecutor are particularly relevant. Also, 18 Pa. C.S. 4910 (Tampering with or fabricating physical evidence) may impose criminal penalties for destroying evidence.
A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he: [] alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation[.] 18 Pa. C.S. 4910

Also, authentication of social media evidence remains a serious issue on the near horizon. Authentication raises complex technology-related issues as well as typical legal issues.

So, at the end of 2011, progress was made but many serious and challenging issues remain unresolved.

Other Relevant Articles on This Site

Publication Information

Original Publication: 28 December 2011

References

Ben Present, No Reasonable Expectation of Privacy on Facebook, Pa.
Judge Says
, The Legal Intelligencer (Nov. 23, 2011) (addressing Largent v. Reed).

Ben Present, Plaintiffs Score a Pair of Wins in Social Media Decisions, The Legal Intelligencer (Dec. 20, 2011) (addressing Arcq v. Fields and Kalinowski v. Kirschenheiter).

Richard Raysman and Peter Brown, Authentication of Social Media Evidence, Law Technology News (Nov. 11, 2011) (addressing some authentication issues with social media).