From Legal Tech News and ALM comes a good lawyer practice tip report from Federal Judges Sallie Kim and Xavier Rodriguez. Major hint is for lawyers to go back and read the 2015 revisions to the Federal Rules which govern discovery, data collection and electronic productions of documents. Read the article here on ALM/Legal Tech: http://tinyurl.com/yclmj9hv
As a follow up to Robert Wagner’s post, “Discovery of Facebook Accounts,” I will take a closer look at the analysis by Judge Wettick in Trail v. Lesko, No. GD-10-0172249 (July 3, 2012) for determining what a party needs to establish before Judge Wettick will order disclosure of non-public Facebook, or other social networking, content. I will also provide an update on whether other courts have relied upon Judge Wettick’s opinion.
At the outset, Judge Wettick notes that no appellate court in Pennsylvania has addressed discovery requests for information contained within an individual’s Facebook profile. He reviews the approach of other trial judges in Pennsylvania to date and concludes that most Pennsylvania “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.”
Judge Wettick also found the decisions of other state and federal courts to be largely in line with Pennsylvania case law. As in Pennsylvania, other courts agree that the content posted by someone on Facebook is not privileged, either because communications with “Friends” are not privileged or because, if the communications were privileged, such privilege was waived by sharing the content with others. On the other hand, the courts disfavor “fishing expeditions” and tend to require some evidence suggesting the existence of relevant information prior to ordering access to a person’s non-public social media information. According to Judge Wettick, courts from other jurisdictions have taken more steps than Pennsylvania courts, however, to require more narrowly tailored discovery orders or have even relied on counsel to review his or her client’s profile for relevant information in the first instance.
Trail v. Lesko was a personal injury case arising from a motor vehicle accident which was allegedly caused by defendant’s drunk driving. Judge Wettick indicated that he was basing his rulings on Pennsylvania Rule of Civil Procedure 4011(b), which provides that “[n]o discovery or deposition shall be permitted which . . . (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party . . . .” Judge Wettick reasoned that a court order that gives an opposing party access to another’s non-public Facebook page “is intrusive because the opposing party is likely to gain access to a great deal of information that has nothing to do with the litigation and may cause embarrassment if viewed by persons who are not “Friends.” Because such discovery is intrusive, it is protected by Rule 4011 “where the party seeking discovery has not shown a sufficient likelihood that such discovery will provide relevant evidence, not otherwise available, that will support the case of the party seeking discovery.”
However, Judge Wettick did acknowledge that the level of intrusiveness for a Facebook page, containing information made available to others who have no obligation to keep it confidential, is likely to be low. Therefore, someone seeking to obtain such information will only need to show that the discovery “is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.”
Applying this reasoning to the facts of the case before him, Judge Wettick found that neither party had shown sufficient need for discovery of each other’s non-public Facebook pages. Plaintiff was not entitled to the information because defendant had already made admissions in response to requests for admissions that made the request for Facebook content unnecessary, and defendant was not entitled to the information because the photos from plaintiff’s public page did not contain any information that suggested plaintiff’s personal injury claims were called into question.
With this opinion, Judge Wettick is informing litigators that while he is not opposed to permitting discovery of non-public social media, parties need to show that the social media that a person otherwise assumes is directed solely to a limited audience, i.e. their “friends,” is reasonably likely to be relevant to the claims in the case and is not available elsewhere. In short, Judge Wettick attempts to balance a person’s privacy interests with those of a party seeking to prove or defend his or her case.
So far, no other courts have cited Judge Wettick’s opinion. We will continue to watch for Pennsylvania court opinions following or rejecting Judge Wettick’s approach and for any rulings from the Pennsylvania appellate courts on the issue of discovery of social media.
Parties to litigation are used to providing privilege logs (a list of documents not produced in discovery on the grounds that the documents contain privileged information) with such information as author, recipient, date, description of the document and the privilege being asserted. Now that electronic documents are becoming the “norm,” the courts may begin requiring more information about these documents. Once such case is Favors v. Cuomo, a redistricting case in filed in the Eastern District of New York. In this case, the court ordered defendants to supplement their privilege log to include “addressee(s), copyee(s), blind copyee(s), date, time, subject line, file name, file format, and a description of any attachments.” Favors v. Cuomo, 11-CV-5632, 2012 U.S. Dist. LEXIS 113076, *116 (E.D.N.Y. Aug. 10, 2012) (U.S. Mag. J. Roanne L. Mann). The rationale for this ruling was that this type of information is easily and readily accessible given the metadata available for electronic documents. Id. However, the court did add that merely listing the subject line, file name or document title would be insufficient as it would result in “vague, confusing, or conclusory descriptions.” Id. at *117 n.36. Thus, this type of information would have to be revised to provide a sufficient description of the document.
With the incredible rise of social networking websites (an estimated half of Americans use these sites), litigators are beginning in earnest to seek discovery of parties’ social networking accounts and postings (such as Facebook, LinkedIn, MySpace, Twitter). Frequently, statements made or photographs shown on a person’s “wall” or page made be relevant to issues in a lawsuit. For example, in a personal injury action where a plaintiff claims to be disabled or physically restricted because of an accident, a photograph showing the plaintiff engaged in a physical activity after the injury, such as skiing or running, may shed light on the true extent of his or her injuries. Litigators want to obtain access to these social networking sites as part of the discovery process.
The question facing Courts is whether to allow such access and, if so, are there limits on what must be revealed. Senior Judge R. Stanton Wettick, Jr. of the Court of Common Pleas of Allegheny County (which includes Pittsburgh) recently issued an opinion where he extensively discusses the case law surrounding when a litigant is entitled to access an individual’s social networking site and what must be produced if it is. Because Judge Wettick handles most discovery disputes in Allegheny County, this decision is particularly important for practitioners in Pittsburgh and Pennsylvania state courts.
In his opinion, he notes that information from an individual’s social networking site is not protected by any privileges, either because there is no basis for the privilege or it has been waived by sharing the information with others. Despite that, he concludes that the information is not per se discoverable. Rather, the party seeking the discovery must make some threshold showing that there is likely to be relevant information on the social network site before it is entitled to discovery. He concludes that such a test adequately balances the need for relevant discovery with the intrusion of giving access to a great deal of personal information that is unrelated to the issues in the lawsuit.
Here’s a scary decision by a California Appellate Court reported on Wired.com http://www.wired.com/threatlevel/2011/01/email-attorney-client-privilege/. An employee who sues her employer for discrimination, and who communicates with her lawyer using her employer’s e-mail system, waives the attorney client privilege by using the company’s e-mail system to seek or receive legal advice from her lawyer. In other words, if you sue your employer, you may not use that employer’s e-mail server to communicate with your lawyer, or those communications are not privileged. This is an important issue not only to litigants, but to lawyers, who routinely send litigation related e-mails to clients at workplace e-mail addresses. Lawyers must now, perhaps, ask clients a series of questions regarding the process of e-mail communications so that a privileged system of communication can be established. Wired.com quotes the court as holding that “The e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.” The key to the decision involves the explicit warnings given to plaintiff and her fellow employees about the use of company e-mail. The court’s holding cited the following rationale for its decision to vitiate the privilege: “This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” See the Courts Published Opinion: http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF
Whether the California decision will be followed elsewhere, or copied in other state or federal courts remains to be seen. We at PitIPtechblog will continue to monitor this decision and its fallout.
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