“New Wine in an Old Bottle”: The Advent of Social Media Discovery in Pennsylvania Civil Litigation Matters

By: Daniel E. Cummins, Esquire*

Citation: 60 Vill. L. Rev. Tolle Lege 31 (2014)

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In the absence of appellate guidance to date, trial courts across the Commonwealth of Pennsylvania continue to be on their own as they attempt to craft appropriate remedies to an increasing number of discovery disputes in civil litigation matters over the issue of whether one litigant may gain access to the private portions of another litigant’s social media profiles.[1]

Most of the cases decided to date focus upon efforts to discover information and photographs from the private pages of an opposing party’s Facebook profile. With the seemingly boundless willingness of people using the Internet to put more and more personal information on social networking sites, counsel on both sides of the bar have begun to utilize Google searches and cull social media sites in an effort to uncover useful information.

As the tangled and sticky worldwide web of social media continues to grow, these discovery requests, particularly in personal injury matters, will become routine—especially to Facebook—and will likely expand to include requests for production of information and photos posted by an opponent on other online sites such as Instagram, Twitter, and LinkedIn.

Requests for this type of discovery usually receive objections, giving rise to motions to compel. The party receiving the discovery demand, typically the plaintiff in personal injury cases, will often make an argument that the defense is on an impermissible fishing expedition and that postings on the private pages of such sites are protected by reasonable expectations of privacy.

The proponent of Facebook discovery, usually the defense in the personal injury context, will typically claim that such discovery should be allowed as such social media profiles were voluntarily made, with the full knowledge that they may not necessarily be kept private. Moreover, the defense will usually argue that allowing such discovery would further the overriding goal of civil trials of searching for the truth of the claims and defenses presented.

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* Daniel E. Cummins, Esq. is an insurance defense civil litigator and partner with the Scranton, Pennsylvania law firm of Foley, Comerford & Cummins. The Author is a graduate of Villanova University and The Dickinson School of Law. In addition to litigating a wide variety of civil litigation matters, he is a regular columnist on civil litigation topics with the Pennsylvania Law Weekly and is a former Author of the Annual Supplement to the Pennsylvania Advocacy Handbook treatise. The Author is also the sole creator and writer of the nationally recognized civil litigation blog entitled Tort Talk, found at http://www.TortTalk.com. Several passages in this Article, including, but not limited to, the listing of Facebook discovery decisions from around the Commonwealth of Pennsylvania to date, were derived from Tort Talk postings.

The phrase in the main title was utilized by Lackawanna County Judge Terrence R. Nealon in his Facebook discovery decision, Brogan v. Rosenn, Jenkins & Greenwald, LLP, to emphasize that although the courts are faced with novel issues of discovery in the digital age, the same Rules of Civil Procedure pertaining to discovery are to be applied. See Brogan v. Rosenn, Jenkins & Greenwald, LLP, No. 08 CV 6048, 2013 WL 1742689, at *6 (Ct. Com. Pl. Lackawanna Cnty. Apr. 22, 2013); see also infra notes 60–70 and accompanying text.

[1]. There are also emerging issues regarding whether parties may explore the social media activity of non-party witnesses and even jurors. In an effort to keep this Article focused on the central issue of discovery of a party’s social media information, those wider issues are not reviewed in this Article.