Attorney Mark Buterbaugh made a live appearance on WHTM ABC 27 noon-time news show, Good Day PA. Attorney Buterbaugh discussed some very basics with regarding to workers compensation.
York County Court of Common Pleas recently issued an opinion denying a Defendant’s discovery request to obtain Facebook information from a Plaintiff, in which the Plaintiff opted that information to be private, under Facebook’s privacy settings.
In this case, the Defendant filed a Motion to Compel Discovery on the Plaintiff to obtain information on Plaintiff’s Facebook that was set as private. Defendant was seeking information regarding Plaintiff’s diagnosis as the result of a personal injury litigation matter. Specifically, the Defendant was seeking access to over 650 photos of the Claimant that would go to contradict the Claimant’s contention of “loss of life’s pleasures” and ‘loss of sense of well being”.
This Motion to Compel Discovery of private Facebook information was an issue of first impression before the York County Court of Common Pleas. The Court heavily analyzed a previous ruling made by Judge Wettick in Trail v. Lesko, 2012 WL 28640004 (2012).
However, the Court chose to shape it’s own rule. The Court said;
Where discovery has been served requesting private information contained in an account held by a party on a social media platform that the party specifically elected to make private . . . an objection lodged by the party to the discovery will be sustained unless the party serving the discovery makes a threshold showing that otherwise available information leads to a reasonable probability that relevant information is contained within the private portion of the account. Hunter v. PRRC, Inc t/d/b/a PRICE-RITE No. 2010-SU-3400-7 (2010)
The standard handed down by the President Judge Stephen P. Limbaugh is pretty restrictive, requiring a very specific rather than a broad showing for the need of such evidence that is private. President Judge Limbaugh rejected hypothetical showings.
The hypothetical possibility that relevant or discoverable information may exist in an account held privately is not sufficient to meet this showing. Actual facts must be shown . . . ” Id.
If the party that filed the motion can sustain the threshold showing burden, then the burden shifts to the objecting party.
However if the opposing party can establish that discovery would cause unreasonable annoyance, embarrassment, oppression, burden or expense, and therefore be prohibited by Rule 4011 or require limitation pursuant to Rule 4012, then discovery will not be permitted or will be limited.”
The Court did identify that if a person chose to make the information private AFTER receiving the discovery request, that material may very well be discoverable.
The latest Facebook discovery request case comes out of the Allegheny Court of Common Pleas in a decision authored by the Honorable Stanton Wettick Jr. In this case, Judge Wettick denied Facebook discovery in a motor vehicle accident litigation case. In the decision, Judge Wettick balances the level of intrusion versus the value of the discovery requested.
Here, Plaintiff was seeking access to Defendant’s Facebook profile to show the Defendant’s whereabouts at and near the time of the motor vehicle accident. Defendant argued that he did not drive the vehicle and was unaware who did. However, in Admissions discovery, Defendant admitted to driving the vehicle. Judge Wettick denied the request because Plaintiff already had the information he sought in the Admissions.
Additionally, Defendant sought access to Plaintiff’s Facebook to show that Plaintiff did not sustain the serious injuries he had averred. The photographs that were used by Defendant to show relevance were not dated. Additionally, Judge Wettick noted that Plaintiff never averred he was bed ridden, therefore, a few photographs showing Plaintiff out socializing were not relevant. In denying Defendant’s request, Judge Wettick again uses the intrusion to value balancing test as defined in Rule 4011, which bars discovery requests that are unreasonable, an annoyance, embarrassment, oppression, burden, and/or expense.
You can view the text of Judge Wettick’s decision HERE.
The Decision appears to be in line with other Pennsylvania based Facebook discovery request cases, based on reasoning.
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