PA Judge Orders Expert Review of Facebook Page - COTW #144

Pennsylvania has had a number of Facebook discovery cases in the past couple of years. However, a recent decision out of Lancaster County took a slightly different approach.

The discovery dispute arose over Facebook photos (and video) allegedly showing a personal injury plaintiff frolicking in the snow. Per the order:

1. Within seven (7) days of the date of this order, the parties are to agree upon a neutral forensic computer expert to conduct an examination of the relevant material on Plaintiffs' computer.

2. The expert is to be given Plaintiffs' user name and password information in order to access the private portion of Plaintiffs' Facebook social networking account and to download the contents of the Facebook account to the hard drive. The expert is to copy the hard drive and isolate the data for the period January 27, 2010, through February 13, 2010.

3. For the period January 27, 2010, through February 13, 2010, the expert is to identify all photographs of snow and references to snow in any emails and any photographs of Plaintiff, Grace Perrone, engaged in any physical activity.

4. Copies of the files identified in item 3 are to be provided to counsel.

5. This discovery is to be completed within sixty (60) days of the date of this order.

6. The cost of this process including the expert's fees, is to be borne by Defendants.

In short, the Pennsylvania judge ordered third-party expert review of the contents of the Facebook page. I like the balance of allowing the opposing party to probe for relevant information, while not giving them unfettered access to the Facebook profile.

I'm a little concerned, however, about the cost. Although I guess it serves as a deterrent to avoid Facebook fishing expeditions as the discovery-seeking party (at least in this case) bears that expense.

HT to fellow Pennsylvania attorney, Dan Cummins of Tort Talk fame - Novel Facebook Discovery Order Out of Lancaster County.

Lawffice Links - New EEOC Publications Galore!

Wow, I can hardly keep up with all of these new EEOC publications. Here are the links:

• Cancer: Q&A on Cancer in the Workplace and the ADA
• Diabetes: Q&A on Diabetes in the Workplace and the ADA
• Epilepsy: Q&A on Epilepsy in the Workplace and the ADA
• Inetellectual Disabilities: Q&A on Intellectual Disabilities in the Workplace and the ADA
• GINA: What You Should Know: Q&A About Genetic Information Nondiscrimination Act (GINA) and Employment
• The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work

In case you didn't have any plans for the three-day Memorial Day weekend . . . .

SCOTUS Grants Cert. in Sarbanes-Oxley Retaliation Case

On Monday, the Supreme Court granted certiorari (order here) in Lawson v. FMR, LLC (SCOTUSblog case page here). Per the Petition for Certiorari, the Question Presented is:

Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, forbids a publicly traded company, a mutual fund, or “any ... contractor [or] subcontractor ... of such company [to] ... discriminate against an employee in the terms and conditions of employment because of ” certain protected activity. (Emphasis added). The First Circuit held that under section 1514A such contractors and subcontractors, if privately-held, may retaliate against their own employees, and are prohibited only from retaliating against employees of the public companies with which they work.

The question presented is:

Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A?

The Sarbanes-Oxley Act generally protects "whistleblowers who disclose fraud or certain other unlawful activity to company management, to federal agencies, or to Congress." (from the Petition, citing 18 U.S.C. § 1514A).

Miles on Sexual Orientation Discrimination

My latest article is available for your consumption in the Reading Eagle Business Weekly. Check out: For employers, discrimination based on sexual orientation is a legal minefield. The takeaway: Federal and Pennsylvania employment discrimination laws don't expressly prohibit sexual orientation discrimination - but there are still plenty of legal risks in that area.

Caperton v. Massey . . . Still Going

Last week, I mentioned that I was reading The Price of Justice - the true story of Caperton v. Massey. I finished it this weekend, and was shocked by the ending.

The setup is that Hugh Caperton and his smaller coal company sued coal giant Don Blankenship and Massey Energy for allegedly driving the former out of business (by tortiously interfering with contracts and committing misrepresentation). Caperton won a $50 million jury verdict, but the West Virginia Supreme court threw it out.

However, Blankenship spent millions of dollars on campaign ads, while the case was pending before the WV Supreme Court, to get a Massey-friendly judge elected. From the later U.S. Supreme Court opinion:

Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

Amazingly, the judge (Benjamin) refused to recuse himself and was the deciding vote in the case. So, Caperton appealed to the U.S. Supreme Court arguing that his due process rights had been violated.

The Supreme Court held that due process required recusal. Happy ending for Caperton, right? Actually, the case went back to the West Virginia Supreme Court, which once again threw Caperton's case out (holding that the action had to be filed in Virginia, effectively killing it forever in West Virginia). So, Caperton filed suit in Virginia.

Now, for the truly shocking part. Caperton got his jury verdict in 2002. The Virginia Supreme Court held that Caperton could proceed with his lawsuit in Virginia . . . last month! I couldn't believe it when I reached the end of the book and the case still hadn't been resolved!

Sidenote: The book covers several other lawsuits vs. Massey, from contaminating drinking water to questionable safety practices killing miners.

Image: Book cover used in commentary on book.

Third Circuit Holds Obama Recess Appointment Unconstitutional - COTW #143

In Noel Canning v. NLRB the D.C. Circuit held that President Obama's "recess" appointments to the NLRB were unconstitutional. For a rundown of the implications of this holding, see here. I warned you that the Third Circuit was also looking at this issue also. Well guess what?

Yesterday, the Third Circuit dropped the hammer. In New Vista Nursing v. NLRB, the Third Circuit became the second federal appellate court to hold that the Constitution's recess appointments clause allows only intersession (not intrasession) recess appointments. Therefore, President Obama's NLRB "recess" appointments were unconstitutional - and the NLRB doesn't have enough members to officially operate (see New Process Steel).

If you want to read the 102-page opinion (and 55-page dissent), knock yourself out. Volokh Conspiracy's John Elwood has a nice post on the decision, including:

The majority thought context was more helpful, particularly “the Recess Appointment Clause’s specification that recess-appointed officers’ terms ‘shall expire at the End of [the Senate’s] next session.’” It reasoned, “[t]he expiration of these officers’ terms at the end of the next session implies that their appointments were made during a period between sessions,” id. at 75, and “if recess includes intrasession breaks, then we would expect the recess-appointment term to last only until the end of that session.” The majority then addressed historical practice, Id. at 87-95, reaching essentially the same conclusion as the D.C. Circuit: the absence of Founding-era intrasession recess appointments suggests the power does not extend that far.

Employers and employees could already choose to appeal NLRB decisions to the D.C. Circuit (or their "home circuit"). For parties in the Third Circuit, both routes now lead to the same place: the NLRB is powerless.

This decision also places even more pressure on the Supreme Court to take Noel Canning and decide the scope of the president's recess appointments power. I suspect a major SCOTUS ruling next year . . . .

Angelina Jolie and Employment Law

By now, you've probably already heard about the biggest news in the world for the past day or so . . . Angelina Jolie's double masectomy. Why an apparently uneventful preventive surgery on an actress is the number one story in the world is a riddle I have yet to solve. I have, however, nailed down an employment law tie-in!

You can't spell Angelina without GINA (if you rearrange some letters)! The key here is the reason Ms. Jolie had the operation:

[T]he truth is I carry a "faulty" gene, BRCA1, which sharply increases my risk of developing breast cancer and ovarian cancer. My doctors estimated that I had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer, although the risk is different in the case of each woman. Only a fraction of breast cancers result from an inherited gene mutation. Those with a defect in BRCA1 have a 65 percent risk of getting it, on average.

Ms. Jolie may not realize it yet, but she just became the poster-child for GINA, the Genetic Information Nondiscrimination Act!

This is a great example of the reason Congress passed GINA. Genetic testing has gotten to a point where we can predict, with farely high probability, the chances of contracting certain major diseases. That is why GINA generally prohibits employers from conducting genetic testing, requesting genetic information, and discriminating on the basis of genetic information.

An unscrupulous employer may misuse such information to only hire people who are "low risk" in terms of insurance costs and availability for work. GINA outlaws that.

In a related story, the EEOC just settled its first GINA lawsuit.

Image: Public domain clip art from wpclipart.com.