Discovery of current employment records by former employer in litigation

If employees sue their former employers, can the former employer subpoena (or request via party discovery) the employees' records from their current employer?

I took a quick look at this issue here in the Middle District of Pennsylvania under the Federal Rules of Civil Procedure. Short answer? It is generally discouraged, but may be appropriate where the current employment records are specifically relevant to an issue in the litigation. Even then, the court may direct the employee to obtain the records rather than having a subpoena go out to his or her employer.

Here is an interesting opinion from Magistrate Judge Mehalchick in Zeller v. South Central Emergency Medical Services, Inc. She highlighted the concerns (with some nice research and citations to boot):

M.D. Pa. in Scranton

Individuals have "a legitimate privacy interest in information regarding [their] subsequent employment". E.E.O.C. v. Princeton Healthcare Sys., 2012 WL 1623870 (D.N.J. May 9, 2012); citing Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y.2010); see also Mirkin v. Winston Res., LLC, 2008 WL 4861840 (S.D.N.Y.2008). "[C]ourts . . . have recognized that because of the direct negative effect that disclosures of disputes with past employers can have on present employment, subpoenas in this context, if warranted at all, should be used only as a last resort". Warnke, 265 F.R.D. at 69; see also Conrod v. Bank of New York, 1998 WL 430546 (S.D.N.Y.1998); Gambale v. Deutsche Bank AG, 2003 WL 115221 (S.D.N.Y.2003); Mirkin, 2008 WL 4861840 . . . . Further, a plaintiff may have "a legitimate concern that a subpoena sent to her current employer under the guise of a discovery request could be a tool for harassment and result in difficulties in her new job. Graham v. Casey's Gen. Stores, Inc., 206 F.R.D. 251, 256 (S.D.Ind.2002).

But, that is not the end of the analysis. The records may be relevant to the litigation and discoverable despite the employee's privacy concerns. More citations! I realize this makes it less readable, but readers (and, frankly, I) sometimes come back to these entries to help with research, so I include the citations:

The Court finds that Plaintiff's post-termination employment records are relevant as to the issue of mitigation of damages, and specifically, the amount that Plaintiff could have earned with reasonable diligence. The employment records sought by Defendants from Plaintiff's current and prospective employers are likely to contain the information sought by Defendants, and a request for these documents thus is reasonably calculated to lead to the discovery of admissible evidence on the issue of mitigation. See Noble v. Ruby Tuesdays Restaurants, Inc., 2007 WL 3125131, at *2 (S.D.Ohio Oct.23, 2007) (in Title VII employment action, "[e]mployment records are relevant to the issues of mitigation and damages[.]"); E.E.O.C. v. Woodmen of World Life Ins. Soc., 2007 WL 649298, at *5 (D.Neb. Feb.1, 2007) (in Title VII employment action, court found that "although the plaintiffs have provided certain financial information, the employment records sought [from plaintiff's employers for whom plaintiff worked subsequent to her employment with defendant] . . . may contain information relevant to [plaintiff's] mitigation of damages. Additionally, [plaintiff's] general job performance records reasonably bear on the defendant's stated reason for [plaintiff's] demotion[.]"); Walker v. Northwest Airlines Corp., 2002 WL 32539635, at *2 (D.Minn. Oct.28, 2002) ("[B]oth past and post-termination wage and employment records are highly relevant to the issue of mitigation and to the computation of damages in this case . . . . [O]ther types of employment information such as disciplinary records, resumes, and applications . . . are reasonably calculated to lead to admissible evidence.").

The end result was that the plaintiff was afforded 30 days to produce the information sought by the defendant's subpoenas. That strikes me as a happy medium - the employer can get the information that is relevant to the case, and the employee does not have the uncomfortable situation of his employer getting hit with a subpoena relating to him.

Meyer and Miles on Social Media and Litigation

Go ahead and add to the list of great M and M acts... Eminem, M&M's, Mork and Mindy... and, now, Miles and Meyer. Eric Meyer (of The Employer Handbook fame) and I will be presenting on Social Media and Litigation at the PBA Civil Litigation Section Retreat in Lancaster, PA this weekend.

I prepared a document, including case excerpts, helpful articles, and guidance: Social Media and Litigation. It addresses discovery, ethics, preservation, and authentication, with some emphasis on Pennsylvania law. Enjoy!

The Scope of Discovery is Changing!

The Pennsylvania Bar Institute (PBI - famous for their "yellow books" in these parts) contacted me to update a chapter I had previously contributed to their Taking and Defending Depositions coursebook - seminar coming soon to Philly, Pittsburgh, and Mechanicsburg (sadly, I cannot participate in the actual seminar, but I'll be there in book form!). "No problem!" I said. After all, how much can the discovery rules change in a couple of years . . . .

Whoah! Did you know the scope of discovery is changing? Here's a brief excerpt from the updated chapter:

Amendments to the Federal Rules of Civil Procedure are scheduled to take effect on December 1, 2015 (available online at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf, last visited Oct. 17, 2015). The rules include a significant change to the scope of permissible discovery. Currently, Rule 26 allows discovery of information that is relevant to any claim or defense, including information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The amendments will replace the “reasonably calculated” standard with a “proportionality” standard: 

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1)(amendment eff. Dec. 1, 2015). The new rule narrows the scope of permissible discovery.

That's a big change! The ABA has a nice article and commentary on the new rules here: Significant Changes to Discovery and Case Management Practices.

Social Media and the Practice of Law

I'm continuing to test the limits of my sanity, by taking on fun and exciting side projects. I again apologize for the dearth of blogging. One of these side projects is a CLE presentation that I will give at tomorrow's Centre County Bench Bar Day.

My presentation is titled Social Media and Today's Practice of Law. The general topics are:

• Using Twitter as a Legal News Service
• Discovery of Social Media
• Preservation Issues and Social Media
• NLRA Protected Concerted Activity and Social Media

You can check out the written materials here and the power point presentation here. The discovery topic has a Pennsylvania focus. 

Endnote: My other projects include working on www.KatieOliverForJudge.com and www.facebook.com/KatieOliverForJudge.

After SCOPA Review, Attorney-Expert Correspondence Not Discoverable

Well, it has been a long, strange trip for Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity. In 2010, the Superior Court shocked the legal community by holding that correspondence between an attorney and an expert witness the attorney intends to call at trial is discoverable.

Then, the Superior Court decided to take a second look. Upon reconsideration, in 2011, the Superior Court reversed course in an 8-1 opinion. So, such correspondence appeared to be safe . . . but, wait! What about the Supreme Court of Pennsylvania ("SCOPA" to the cool kids)!?

Well, wouldn't ya just know it? The Supreme Court decided the case this week . . . a 3-3 split! The end result is that the latest Superior Court decision (protecting the correspondence from discovery) is affirmed. You can read the opinion in favor of affirming here, opposed here, and the final order here.

If you're wondering why we have an even-numbered panel at the Supreme Court - it's because Justice Orie-Melvin did not participate (it's a long story).

VeepGeek and Tech Issues

A lot of you probably read the title and thought, "what's VeepGeek?" That's @VeepGeek - aka the Twitter handle for Angie Singer Keating, CEO of Reclamere - Data Security Experts in Tyrone, PA (Lawffice Space fun fact: my father grew up in Tyrone). Angie sent me two interesting IT-related articles that I wanted to pass along.

First, a warning from a panel of judges to lawyers to Catch Up with Tech or Lose Your Career. The panel included Judge Shira Scheindlin (of Zubulake fame), and this great line from Judge James Francis: "E-discovery is pervasive. It's like understanding civil procedure." That's an interesting way to look at it. I don't know that e-discovery is as pervasive as the rules of civil procedure quite yet - but it's a point well-taken.

The second article is Does Fourth Amendment protect computer data? Scalia says it’s a really good question. What does the 4th Amendment (search and seizure) have to do with employment law? Glad you asked! First. public employers may face Fourth Amendment claims. And second, privacy expectations often bleed across criminal procedure into invasion of privacy torts.

If you want a good example of tech data searches hitting the workplace and resulting in litigation, then check out the SCOTUS case Quon v. City of Ontario from a few years back. The Court stayed out of some of the thornier issues presented by mobile technology - but did address some overall privacy concerns. Scalia's comments give us some hope that the Supreme Court may be ready to take on some data search issues.

Paula Deen's Deposition: The Answer - COTW #156

Earlier this week, I blogged about Paula Deen's victory in the race discrimination claims against her. But, I had a question: Why was Paula Deen's deposition taken before the motion to dismiss was resolved? Loyal reader (and MQB colleague), Dave Weixel, found the answer and emailed it to me.

The judge in the case actually denied a motion to stay discovery filed by both sides:

In January, Senior U.S. District Judge William T. Moore Jr. denied without explanation a motion to postpone discovery in the race discrimination and sex harassment case brought against Deen and her brother by one of their restaurant managers. That motion to stay discovery—which, if granted, would have postponed the deposition in which Deen admitted using a racial epithet—was made by lawyers representing both the defendants and the plaintiff.

This strikes me as odd - discovery, and in particular depositions, can be extraordinarily expensive. Think about all the time the parties, their attorneys, and a paid reporter spent in depositions addressing claims that were dismissed at the pleading stage (of course, the primary cost for Paula Deen came from the content of her testimony).

Had the deposition taken place after the race discrimination claims were dismissed, the racially charged questions probably would have been off the table . . . . contrary to the quote in the linked article from an attorney:

It's probably a permissible question in a deposition . . . . You are trying to determine the atmosphere. If you use the N word, you probably have greasy paws on women.

Sorry. Not buying it. I invite my readers to weigh in by dropping a comment. But seriously, did anybody read Paula Deen's "n-word" testimony and think, "yeah, she probably has her 'greasy paws' on women"? I'm guessing no.

Federal Court Denies Social Media Discovery Request - COTW #153

Today's Case of the Week addresses social media discovery in an FLSA collective action.

The case:
Jewell v. Aaron's, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013).

The discovery request:

Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron's store.

The problem:
The case involved meal breaks, and the social media evidence requested may not even be relevant. "The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19."

The defendant did provide some examples, including a Facebook post from an employee who expressly stated that he was "on lunch." The defendant also hoped that it could cobble together 30 minutes of break time based on social media posts provided in response to their request.

It was not enough for the Court though. The Court noted:

[T]he burden of requiring all 87 opt-ins to review all of their postings on potentially multiple social networking sites over a four year period and match that information to their work schedules would be an extremely onerous and time-consuming task. Defendant acknowledges that the lunch hour of any sample opt-in is a potentially moving target.

The holding:
The Court denied Defendant's motion to approve its request for production.

See also: Court Denies Employer's Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded ... Leave the Water Gun at Home, by Sara Hutchins Jodka at Porter Wright. HT: Brian Hall via Twitter.

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.

Facebook Discovery and Spoliation - COTW #137

Last week, a federal court in our circuit (D.N.J. in the 3d Cir.) issued a spoliation order with analysis of destruction of evidence on Facebook: Gatto v. United Airlines.

The parties attended a settlement conference on December 1, 2011, where the plaintiff agreed to set his Facebook password to 'alliedunited' for "the purpose of accessing documents and information from Facebook." There is some dispute about whether defense counsel was supposed to directly access the page (why would they get the password if not?), and the plaintiff claims he was concerned by a subsequent Facebook notice regarding an unusual access attempt.

So, he "deactivated" his account on December 16, 2011. Some interesting notes about shutting down your Facebook account:

• Facebook itself explains that there is a difference between deactivating and deleting your account; and
• If you delete your account, Facebook apparently deletes it permanently after 14 days (at least they did as of December 2011).

It turns out that the plaintiff didn't "deactivate" his account but permanently deleted it . . . as in forever. 

This is a pretty easy spoliation case for the Court to resolve. The plaintiff knew the Facebook information was the subject of discovery, and permanently deleted it. The Court held that an adverse inference instruction will be given to the jury.

See additional coverage: Molly DiBianca's Spoliation of Facebook Evidence.

PA Judge Provides Social Media Discovery Rundown

In Trail v. Lesko (opinion here), Allegheny County Judge Wettick provided a great resource for anyone researching social media discovery issues. Judge Wettick authored a 20-page opinion, running through nine Pennsylvania state court decisions addressing discovery of social media in litigation:

[The Pennsylvania] Courts of Common Pleas that have considered discovery requests for Facebook information appear to follow a consistent train of reasoning. The courts recognize the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the non-public portions of the profile. To this end, the courts have relied on information contained in the publicly available portions of a user's profile to form a basis for further discovery.

The opinion also covered other jurisdictions, including Michigan, Nevada, Indiana, Kansas, and New York. The Judge noted that "[u]nlike our Common Pleas Court cases . . . other jurisdictions have wrestled to establish a middle ground between the wholesale denial of the request on the one hand and the granting of unlimited access to the user's profile on the other."

So, what about Trail itself? Well, that's the funny thing . . . after the extensive rundown of cases, the issues in Trail are no-brainers with only brief analysis. Plaintiff's motion to compel discovery of the defendant's Facebook account was denied. The defendant had already conceded liability and admitted to driving with a .226% blood alcohol level (that's pretty drunk, FYI). So, what good would Facebook discovery do?

Defendant also had a motion to compel discovery of Plaintiff's Facebook account. This was likewise denied. The only support for the request was two undated photos that were not inconsistent with the plaintiff's injuries.

The analysis here probably doesn't break any new ground, but the opinion is still a great resource because of its in-depth look at existing case law in the area of social media discovery.

Image: Facebook logo used in commentary on Facebook.

Pennsylvania Adopts E-Discovery Rules

On June 6, 2012, the Pennsylvania Supreme Court issued an Order amending the Pennsylvania Rules of Civil Procedure to include e-discovery provisions. They also announced the changes via Twitter. Yup, they have their own Twitter account - one of the reasons my state's high court is cooler than yours.

You can view the Amendments here. All told, they're pretty modest. Electronically Stored Information is expressly included in 4009.1 (Production of Documents and Things). The rules also address the format of the responses:

A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.

Sounds a lot like the federal rules, huh? Not so fast! The explanatory comment expressly states that "there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information."

Instead, Pennsylvania utilizes its own proportionality standard. How does that work with ESI? I'm glad you asked . . . the court is required to consider:

(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; 

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; 

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; 

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and 

(v) any other factors relevant under the circumstances.

It will be interesting to see if Pennsylvania's proportionality standard can control costs any better than the federal rules.

HT: Jon Stepanian, my McQuaide Blasko colleague and blogger at Defense of Medicine.

Employer Wins, then Loses, Right to Search Employee's Home Computer for Porn - COTW #87

In In Re Jordan, 2012 WL 1098275 (Tex. App. 2012), a woman sued her former employer claiming "that she was subjected to a sexually hostile work environment and was fired for reporting it." Specifically, she claimed that she saw "sexually graphic content" on computers at work and it was oh-so-offensive to her. Why was it soooo, offensive? Because she had never seen porn in her entire life until she started working there.

The employer wasn't convinced so it sought some discovery. In particular, the employer wanted a forensic computer examiner to check out the employee's home computer for signs of porn in her Internet history and email. Mission accomplished! - the trial court granted just such an order.

Not so fast! The appeals court reversed (technically, it threatened the trial court with a writ of mandamus if it didn't vacate), holding that the employer was required to set forth its search methodology and the examiner's credentials. The trial court should also have considered a protective order and been "sensitive to the highly intrusive nature of computer storage search."

HT: Internet Cases - and Heather Bussing via colorful tweet.

3d Circuit Weighs in on Recovering E-Discovery Costs

Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 11-2316, 2012 WL 887593 (3d Cir. Mar. 16, 2012)(marked for publication in F.3d). Judge Vanaskie (who I'll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.

The highlights from the opinion:

The District Court in this case concluded that more than $365,000 in charges imposed by the electronic discovery vendors, covering such activities as hard drive imaging, data processing, keyword searching, and file format conversion, are taxable . . . . In view of the significant role that electronic discovery plays in litigation today, involving the collection, processing, and production of huge volumes of data generated as a result of the information technology and communication revolutions, we believe it imperative to provide definitive guidance to the district courts in our Circuit on the question of the extent to which electronic discovery expenses are taxable . . . . We further conclude that only scanning and file format conversion can be considered to be "making copies," an activity that amounts to approximately $30,000 of the more than $365,000 in electronic discovery charges taxed in this case.

And the conclusion:

Neither the language of [28 U.S.C.] § 1920(4), nor its history, suggests that Congress intended to shift all the expenses of a particular form of discovery—production of ESI—to the losing party . . . . Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute. 

In sum, we conclude that of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved "copying," and that the costs attributable to only those activities are recoverable under § 1920(4)'s allowance for the "costs of making copies of any materials."

And that settles that!

HT: The Legal Intelligencer - 3rd Circuit Slashes E-Discovery Costs to be Recovered.

UPDATE (3/19/2012): You can read the opinion here. Commenter Nicholas Wagoner dropped a link to his excellent blog, Circuit Splits, for his analysis of the circuit split on this issue: Recovering the Cost of E-Dscovery.

Image: Third Circuit seal used in commentary on Third Circuit. Not official use.

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.

Social Media Discovery Request DENIED - COTW #71

Just last month, the Franklin County Court of Common Pleas here in Pennsylvania ordered a party to hand its Facebook password over to opposing counsel. Exactly one month later, on December 7, the same court issued another opinion on a motion to compel social networking information as part of discovery. But this time, the Court denied the motion.

The new case is Arcq v. Fields (HT: Volokh). So, what was different this time around? In the Court's own words:

We find that there lies one glaring, distinguishing factor that prevents us from [granting the motion]: Defendant's request is not the result of viewing the public portion of Plaintiff's profile.

The Court noted that requesting party seemed uncertain of whether the plaintiff even had the MySpace, Facebook, LinkedIn, and Twitter accounts he was requesting. The bottom line:

While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that the defendant have some good faith belief that the private profile may contain information. Here, Defendant had no reason to believe so, therefore the Motion to Compel will be denied.

I think this case reminds us that social media discovery is ultimately just normal discovery, and the same principles apply. How the courts will apply those principles to social media moving forward remains to be seen.

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.

Attorney-Expert Correspondence Not-So-Discoverable After All

In September 2010, the Superior Court of Pennsylvania surprised attorneys across the state by holding that correspondence between an attorney and an expert witness who the attorney intends to call at trial is discoverable. The case was Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity. The decision was extremely unpopular in some circles, and the Superior Court abruptly withdrew the decision for reconsideration about a year ago.

Last Wednesday, the Superior Court issued its eagerly anticipated opinion on reconsideration... a complete 180:

[W]e hold that [a party's] subpoena seeking documents from [the opposing party's] expert witness was beyond the scope of Pa.R.C.P. 4003.5, without first showing cause as to why such a discovery request was needed. Furthermore, the written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure to the extent that such communication is protected by the work-product doctrine, unless the proponent of the discovery request shows pursuant to Pa.R.C.P. 4003.5(a)(2) specifically why the communication itself is relevant. As such, we also hold that Pa.R.C.P. 4003.3 immunizes from discovery any work product contained within the correspondence between [the attorney] and [the expert witness].

Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 2011 PA Super 251 (Pa. Super. Ct. Nov. 23, 2011). I think there will be quite a few Pennsylvania attorneys (and expert witnesses) breathing a sigh of relief.

This time around, the split was 8-1 (and even the "1" was a concurring in part).

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.

Pennsylvania Still Blazing the Facebook eDiscovery Trail

Think Before You Click:
Strategies for Managing
Social Media in the Workplace

Pennsylvania just keeps cranking out new social media discovery cases. The latest is Largent v. Reed, No. 2009-1823 (Franklin Cty. Nov. 7, 2011). Judge Walsh issued a 14-page opinion with some nice analysis of emerging e-discovery law.

Largent is a vehicle collision case in which the plaintiff claims serious injuries requiring her to use a cane. She also claims she suffers from mental pain and depression. Defense counsel found out that her Facebook page was once open to the public and showed photos of the plaintiff having fun with her family and a status update about going to the gym.

Now, the defendant has filed a motion to compel the plaintiff to hand over the keys to her Facebook page (username and password). The Court first addressed the plaintiff's claim of "privilege and privacy":

[T]here can be little privacy on a social networking website. Facebook’s foremost purpose is to "help you connect and share with the people in your life." That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.

Strike one!

The plaintiff next claimed protection under the Stored Communications Act (SCA). However, the SCA only applies to ISPs, including electronic communications services (ECS) and remote computing services (RCS). Notably, it does not apply to individual users. Strike two!

Finally, the plaintiff challenged the breadth of the discovery request. The Court basically points out that she put her health at issue in this case and has waived her privacy interest. The Court also noted that the only two Pennsylvania cases to address this issue compelled discovery (while there are also two that did not compel discovery, neither order included an opinion). Strike three! You're Out!

The Court granted the motion to compel and ordered:

[T]hat Plaintiff Jennifer Largent shall turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account. After 35 days from the date of this Order, Plaintiff may change her Facebook login password to prevent further access by Defense counsel.

Another Pennsylvania social networking discovery case in the books. We're still waiting for that first appellate opinion though...

For more coverage of social media discovery issues, check out a book I co-authored, Think Before You Click: Strategies for Managing Social Media in the Workplace. (update: another co-author, Eric Meyer, has more on Largent over at The Employer Handbook).

HT: Copy of the Opinion and Order provided by Drug and Device Law.

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.

Text Message, Email, and Social Media Authentication

Good news! You found some text messages that really help your case. Now, how do you authenticate them? Authentication is a prerequisite for admissibility of evidence - so like Ron Burgundy, it's kind of a big deal.

Earlier this month, the Superior Court of Pennsylvania addressed the authentication of text messages in a criminal case, Com. v. Koch, 2011 WL 4336634 (Sept. 16, 2011). As a matter of first impression, the Court held that text messages on the defendant's cell phone were not properly authenticated. Specifically, per the Westlaw Headnote:

Police detective's description of how he transcribed drug-related text messages from defendant's cellular phone, together with his representation that the transcription was an accurate reproduction of text messages on the phone, was insufficient to authenticate the identity of the author as defendant . . . [A]lthough the phone was found on the table in close proximity to defendant, Commonwealth conceded that defendant did not author all of the text messages on her phone, no testimony was presented from persons who sent or received the text messages, there were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.

You mean those awesome text messages aren't coming in? Yup.

Oh, and those awesome emails you have? Well, you might want to take steps to make sure you can authenticate those as well. The Court specifically noted in its analysis:

[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.

I don't think I'm making too much of a leap here to suggest that authentication of social media may require more than just, "it came from your account" too. Ahh, applying age-old evidentiary rules in new ways... isn't this fun?

HT: My colleague Jon Stepanian (@jbstepanian) emailed me this Legal Intelligencer article on the case. Jon authors a health law and policy blog, Defense of Medicine.

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.

Another Pennsylvania Court Holds: Hand Over Your Facebook Password - COTW #42

My home state of Pennsylvania has become a hotbed of social media discovery activity! The latest Case of the Week comes from Northumberland County and it's Zimmerman v. Weis Markets. The Plaintiff sought damages for a workplace forklift accident. His employer sought his MySpace and Facebook passwords as part of discovery.

The employer had good reasons to want access to his social media information. For example, he claimed his health had been "seriously and permanently impaired" but his Facebook and MySpace pages listed his interests as "ridin" and "bike stunts," and had pictures of his motorcycle. Plaintiff also claimed in deposition that he was too embarrassed to ever wear shorts because the forklift accident gave him a scar on his leg. Well, you probably guessed it... pictures of him in shorts with scar clearly visible on his social media pages.

Plaintiff predictably argued that his privacy interests outweigh the need for discovery materials. I think I've heard this one before... the Court relied in part on a previous Pennsylvania case, McMillen v. Hummingbird Speedway in which the court ordered the plaintiff to hand over his Facebook and MySpace passwords. Here, the Court agreed with McMillen and also relied on a Canadian ruling:

To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

Obviously, Canadian law is not binding in Pennsylvania, but sound logic has universal jurisdiction.

Any guesses on how this story ends? Yup:

AND NOW, this 19th day of May, 2011, it is hereby ORDERED that Plaintiff shall provide all passwords, user names and log-in names for any and all MySpace and Facebook accounts to Defendant within twenty (20) days from the date hereof. It is FURTHER ORDERED that Plaintiff shall not take steps to delete or alter existing information and posts of his MySpace or Facebook accounts.

HT: The Legal Intelligencer, Social Media Discovery Evovlving in Pennsylvania. A copy of the opinion and order is available here, courtesy of Eric Meyer's TheEmployerHandbook blog entry: A new HELLA GOOD social-media-discovery ruling for employers.

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.