A Snapshot of Social Media Cases in Pennsylvania—Summer 2011

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

Pennsylvania lawyers face obstacles when grappling with social media. While social media, outside the legal field, spread like wildfire, the legal community must address social media within the context of a heavily precedential system—a system that does not necessarily handle the “new” well. Social media in a legal context triggers formidable ethical issues, moral issues, and fairness issues. Nevertheless, social media will remain a potent facet of life for the foreseeable future.

Social Media Discovery Cases

Discovery seems the first battleground for social media evidence in Pennsylvania. In general, social media is discoverable and generally not protected by any new privilege. The issue of privacy remains fluid. Whereas the cases do not overtly assert a presumed expectation of privacy, the current case law does hint that social media materials, like any other discoverable material, enjoys some form of qualified privacy. See, e.g., Piccolo or Offenback below.

An Emerging “Rule” for Civil Matters?

In civil contexts, an 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 AND
  4. the material is not privileged THEN
  5. the social media content is discoverable.

Salient Cases—Pennsylvania Social Media Discovery

The cases cited here are the most important cases at this point.

McMillen v. Hummingbird Speedway Inc., No. 113–2010-CD (C.P. Jefferson, Sept. 9, 2010)

McMillen must be read carefully. McMillen predicates discovery of social media content on some indication that the social media site contains material relevant to the items at issue in the matter. [6-7] The facts recited indicate that the Defendant first identified publicly accessible material in the Plaintiff’s social media accounts that may shed light on Plaintiff’s claims.[6]

To defend against discovery, the Plaintiff asserted claims of confidentiality and privilege. The balance of the opinion analyzes why confidentiality and privilege do not apply in this case and largely emphasizes the social media provider policies permitting disclosure (obviating confidentiality) and the general, Pennsylvania rule of not recognizing new privileges. [2-6]

Piccolo v. Paterson (C.P. Bucks, [May] 2011)

This case was discussed by Gina Passarella on May 17, 2011, in The Legal Intelligencer (account required).

Building on and distinguishing McMillen, the Defendant requested that the Plaintiff accept a “friend” request from Defendant so the Defendant could review the Plaintiff’s private social media postings (Facebook).

According to the news report, the court denied the compelled “friend” request because the Defendant failed to provide the predicate proof of relevant material in the public profile. Furthermore, the material sought (photographs of the Plaintiff’s injury) was already disclosed in other forms, and there was no Defendant evidence that the Plaintiff made inconsistent representations on the social media account.

[NOTE: The method sought by the Defendant’s, a compelled “friend” request, may be
supplanted by the Facebook Download Information tool. See my earlier article entitled Facebook Download Your Information Basics for Lawyers at http://www.shannonbrownlaw.com/cms/archives/489.]

Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland, May 19, 2011)

Plaintiff in personal injury action placed post-accident condition at issue. Allegedly, the public portion of the Plaintiff’s Facebook page contained information conflicting with the his claims in the lawsuit. [1-2]

Note, the predicate was publicly available material in the social media account that conflicted with the party’s claims. [3-4]

The court specifically addressed and dismissed Plaintiff’s claims of privacy related to the social media materials. [5-6] In general, if the predicate is met (public profile information showing inconsistency in position), additional material on the Facebook account may be relevant and thus discoverable. (But, see my comments above, however, on emerging privacy issues and potential problems with the court’s analysis.)

Essentially, because the predicate was met, any other relevant information in the social media account, and not privileged, is fair game.

See, e.g., http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202495365292

Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789 (M.D. Pa. June 22, 2011) (Memorandum Order)

Notably, to resolve the discovery dispute, the court conducted an in camera review of the Plaintiff’s social media (Facebook) account.

The Plaintiff in a personal injury action placed his post-accident condition at issue. Defendants sought access to the Plaintiff’s social media accounts to discover relevant information about the Plaintiff’s condition. The Memorandum Order does not clearly indicate whether the Defendant’s had evidence of relevant material from publicly available sources. The court logged-in [as the Plaintiff], reviewed the account for relevant materials, and identified several relevant items.

However, Offenback raises some question over public and private in the context of social media. The Plaintiff apparently conceded that “limited [relevant] ‘public’ information is clearly discoverable under recent caselaw [] [thus] the Court finds that some small segment of the public information contained in Plaintiff’s account is properly subject to limited discovery in this case.” But, the Order does not clearly distinguish how the court, who was logged in as the Plaintiff, analyzed public from private disclosures in the Facebook account. That is, and again this is speculation, there is a fundamental difference between conceding that limited, public profile information is discoverable from private profile information.

http://scholar.google.com/scholar_case?case=12227325324526031875&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Authentication of Social Media Cases

While still in its infancy, authentication stands as the next battleground. That is, even if social media material is discoverable, how is the material properly authenticated and thus admissible as evidence? While the question seems easy, viewing social media homogeneously may omit the nuances of social media content. Simply snapping down a “printout” of a social media webpage might not be adequate authentication—social media impersonation and pseudonyms raise serious questions that a lawyer might raise. Furthermore, looking at authentication in Pennsylvania, the purpose for which the social media content is admitted may also be material. For example, laying a foundation may be essential:

  • is the social media content admitted to prove a social media account existed—how do we know the account is the opposing party’s account?
  • is a photograph on the purported social media post material—presumably the photo needs to be authenticated as well as the account
  • is the written content of a posting relevant—best evidence may arise

The point here is that lawyers (and judges should understand) will carefully consider and might oppose the act of simply accepting a social media “printout” as evidence.[FN1]

Social Media Authentication Cases

Chapman v. UCBR, No. 1583 C.D. 2010 (Pa. Commw. Ct, Jan. 14, 2011)

See my earlier Blog Item entitled Pennsylvania Court Opinion Implicates Authentication of Social Media Evidence (May 12, 2011) at http://www.shannonbrownlaw.com/cms/archives/498

The contents of a Facebook page (social media), figured prominently in denying unemployment benefits because the Claimant, a nurse, apparently posted embarrassing information about a co-worker on her Facebook page from a cell phone while on duty dispensing medication to patients. [2-3] Notably, the Unemployment Compensation referee specifically asked the employer’s witnesses whether the Claimant confirmed that the Facebook postings were the Appellant’s. [6-7, 10] The Facebook postings figured materially into the Claimant’s employment termination for misconduct because the time/date stamps of the postings apparently demonstrated that the Claimant was on duty, and not on break, at the time of posting. [See 6-11 and 3, 6, 12]. Further, Chapman may stand for the proposition that failure to raise objections to authenticated social media evidence at a hearing waives later objection to the materials. [See 14.]

Social Media and Jurors (Juries) Cases

Alleged Juror Misconduct Cases

United States v. Fumo, Nos. 06-cr-00319-003 & 06-cr-00319-004 (3rd Cir. Aug. 23, 2011)

The 3rd Circuit concluded that a new trial was not necessary even though a juror posted to social media during jury deliberations and in violation of express Jury Instructions. See discussion at [27-30] in the opinion.

However, see especially the concurring opinion [Concurring Opinion numbered 17-22] by Judge Nygaard amplifying the issues of social media and juries. Judge Nygaard illustrates the emerging reality that technology provides jurors with easy and simple abilities to communicate about and research cases. His concurrence emphasizes the emerging need for judges to strongly caution jurors about such conduct and, perhaps more importantly, to educate jurors about the judicial process and why such actions potentially have serious implications on the jury process.
http://www.ca3.uscourts.gov/opinarch/093388p.pdf

Musings: A Social Media Definition

Social media is (1) some type of web-based, interactive, community-driven network with (2)(a) an emerging, re-definition of “privacy,” and (2)(b) a persistent, “electronic echo” of interactive activity.

Element 1: Web-based, Interactive, Community-driven Network

Facebook, Google+, MySpace, Quora, foursquare, reddit, YouTube, etc. now appear familiar. Social media represents “virtual,” web-based communities where members interact in ways largely analogous to “meatspace” (“real world” for the non-computer savvy) methods. “Virtual” specifically deserves quotation because these communities are indeed real community spaces but simply maintained in a new forum.

Notably, the term “social media” typically conflates the essential distinction between (1) the infrastructure making the community possible and (2) the community or member output. The improper conflation causes, in my opinion, significant confusion and potentially serious traps for legal practitioners.

Element 2(a): Privacy Redefined

Perceptions of privacy change. In social media contexts, privacy increasingly means efforts by individual members, within the context of the tools provided by the social media outlet, to protect or limit access to social media materials. Privacy, in this emerging context, does not necessarily mean secrecy as much as it means conditional and limited access.

Thus, social media members may select “privacy settings” to limit access to the social media materials. But, social media privacy setting options change from time to time and may change without the knowledge of an individual.[FN2] In other words, despite an individual member’s efforts to reasonably maintain privacy, the social media provider itself may expose materials. Assumption of risk? The “penalty” for using social media? Too bad? Courts will need to wrestle with the fairness and scope of such non-member-initiated exposures. Rote reference by courts or lawyers to the Terms of Service as allowing third party access are weak justifications especially when balancing the significant role of social media in business, educational, and employment relationships. Furthermore, the days when courts sometimes seem to adhere to the antiquated, and flatly wrong, assumption that anything-on-the-internet-is-public wane. [FN4]

The point here? We exist in a fundamental transition from privacy as focused simply on protecting information from the government (e.g., Katz v. United States, 389 U.S. 347 (1967) to privacy in the context of personal social relations and commercial contexts. [FN3] Until the late 1960s, the ability of a private organization to have the extraordinary and breath-taking capacity to monitor and track
individual interactions seemed science fiction. Today, most companies have easy access to technologies making not only storage of petabytes of data readily and cheaply available, but also the keen ability to analyze, process, and predict behavior based on that data. Thus, privacy is in transition.

Element 2(b): Persistent, “Electronic Echo”

A second attribute of social media is the “electronic echo.” By definition, social media interaction takes place in a networked, computing-device context. But, the context also exhibits the novel (novel at least in legal time) attribute of maintaining a “written” record of the interactions. This written record is what increasingly makes social media material in legal matters.

Request for Cases

If you have a case that should be added to this list, please contact me.

Please Cite As

To cite this article,
Shannon Brown, A Snapshot of Social Media in Pennsylvania—Summer 2011 (Aug. 2011) http://www.shannonbrownlaw.com/cms/archives/677 .

Footnotes

FN1—From a technical perspective, a “printout” itself may be an issue. Social media exists as a highly relational database record thus a “printout” might not adequately capture the evidence record or be complete.

FN2—Lawyers and courts might incorrectly assume that information exposure was due to some fault or permission set by the social media site member. That is increasingly NOT the case. The Facebook Facial recognition launch in early 2011 and more recently a LinkedIn update may expose member information without the member’s knowledge or notification. See, e.g., Richard Chirgwin, “LinkedIn pulls Facebook-style stunt: Privacy invasion by default,” The Register (Aug. 11, 2011) http://www.theregister.co.uk/2011/08/11/linkedin_privacy_stuff_up/. Yes, reference to the Terms of Service might contractually permit such exposures (and I am not commenting on the legality of such an issue), but the material issue here is instead whether the member exposed private information. Perhaps not. Thus, this may create a real dilemma when using private and public dichotomies as a predicate inquiry. See FN4 below as well.

FN3—This assumption is flatly wrong and misunderstands the current web. In the late 1990s and early 2000s, search engines regularly vacuumed the web and gave the impression that material on the web existed forever. That is not generally the case anymore. Search engines (see Google AdWords) exist for RELEVANCY and not for archival purposes. Thus, transient information, with limited relevance, may be purged from search engines or might be deleted from the originating system. Thus, material may exist
indefinitely but not forever.

FN4—While beyond this article, courts may confuse the analysis in Katz. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz [351]. But, Katz goes on the state: “[b]ut what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz 351. Nevertheless, Katz itself is limited to government actions, and social media (at least as far as we know now) is a private, commercial issue.

Publication Information

First Published: 2011-08-14
Minor Update: 2011-08-15
Update: 2011-08-24