Wednesday, December 21, 2011

Facebook Discovery Odds Dropping in Pennsylvania

Just last month, I was blogging about Pennsylvania blazing the Facebook discovery trail in cases like Largent v. Reed. Getting a personal injury plaintiff's social media accounts and passwords seemed like almost a sure thing. Pennsylvania's still blazing the trail, but suddenly the tide has turned!

Last week, I blogged about a judge in Franklin County denying a social media discovery motion in Arcq v. Fields. And, I just learned of another Pennsylvania case in which the judge denied a motion to compel the plaintiff to hand over Facebook and MySpace passwords.



Think Before You Click:
Strategies for Managing
Social Media in the Workplace
  In Kalinowski v. Kirschenheiter and National Indemn. Co. (Luzerne Cty.), the defendant argued that he saw pictures and posts on the publicly accessible portions of the plaintiff's social media accounts that warranted further discovery. The posts showed the supposedly injured plaintiff lounging on a bar stool in a pimp outfit, advertised a lingerie party at a bar the plaintiff owned, and promoted a going away party for him that promised to be "a night he WON'T REMEMBER!!"

The plaintiff argued that the pimp picture was pre-injury and the content cited by the defendant served no purpose other than to embarrass the plaintiff. The plaintiff also emphasized that none of the content directly impeached any of his testimony.

The judge denied the motion to compel production of the plaintiff's Facebook and MySpace passwords. But, the order also directs the plaintiff not to delete any of the present content. So, the door remains open to future social media discovery.

HT: Dan Cummins of TortTalk who provided me with the motion, brief in opposition, and order. He has more on this case: Judge Van Jura of Luzerne County Bucks the Trend on Facebook Discovery in a Facts-Specific Case.

See also: The Legal Intelligencer has a nice article on Pennsylvania social media discovery: Plaintiffs Score a Pair of Wins in Social Media Decisions.

Shameless Plug: For more on social media issues, check out the book I co-authored: Think Before You Click: Strategies for Managing Social Media in the Workplace.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.