E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

In the most recent decision to come out of Pennsylvania regarding the discoverability of social media, a Philadelphia judge denied a defendant’s request to gain access to a plaintiff’s Facebook page. 

In Martin v. Allstate Fire and Casualty Co., Case No. 110402438 (C.P. Phila. Dec. 13, 2011), the plaintiff, a pedestrian, was hit by a vehicle driven by a third-party tortfeasor.  The plaintiff collected the policy limit from the third-party’s insurer and then demanded the Uninsured Motorist coverage from her own insurer, the defendant.  During her deposition in October, defense counsel asked the plaintiff if she used Facebook, to which she responded that she did.  Upon asking for her password, defense counsel was met with an immediate objection.  In return, defense counsel filed a Motion to Compel such information.  Counsel for the plaintiff responded in opposition, arguing that any information on the plaintiff’s Facebook is not relevant to her claims or injuries and does not contradict her claims.  In a one-page, single-line Order, Judge Manfredi agreed and denied defendant’s Motion. 

This decision follows a November ruling from Judge Walsh, who determined that information posted on the plaintiff’s Facebook page was relevant and not privileged, and therefore discoverable.  See Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011); see also www.ediscoverylawreview.com/2011/12/articles/opinions/post-at-your-own-risk-pennsylvania-court-permits-discovery-of-information-on-personal-facebook-profile/.  Largent, along with two other defense-friendly decisions, Zimmerman v. Weis Markets Inc., Case No. CV-09-1535 (C.P. Northumberland May 19, 2011) and McMillen v. Hummingbird Speedway Inc., Case No. 113-2010CD (C.P. Jefferson Sept. 9, 2010) got the defense bar out to a 3-0 lead on the discoverability of information posted on Facebook.  While the Martin decision scores a big point for plaintiffs, it demonstrates that there is still a lot of uncertainty in the law surrounding the recent phenomenon of social media and its relevance to civil litigation. 

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A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant.  Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident. 

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.  Specifically, Defendant claimed that Plaintiff posted several photographs that showed her enjoying life with her family and a status update about going to the gym.  Defense counsel requested access to Plaintiff’s Facebook page, but Plaintiff refused to voluntarily disclose any information about her profile.  In response, Defendant moved to compel Plaintiff to disclose her Facebook username and password.  Plaintiff  opposed the Motion, arguing that the information sought was irrelevant, did not meet the threshold under Pennsylvania Rule of Civil Procedure 4003.1, and that access to her information would cause unreasonable embarrassment and annoyance.    

Court of Common Pleas Judge Richard J. Walsh began his opinion with a lengthy description of Facebook as the site that “helps you connect and share with the people in your life.”  Judge Walsh pointed out that the site has more than 800 million active users, 50% of whom are active on the site daily.  Although he acknowledged that Facebook has privacy settings, Judge Walsh emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. 

The Court then turned to the issue at hand - whether and to what extent such “private” information is discoverable in a civil case.  With respect to relevancy, the Court pointed out that Pennsylvania has a “slight” relevancy threshold pursuant to Pennsylvania Rule of Civil Procedure 4003.1.  Under this standard, the photographs depicting Plaintiff with her family and status updates about exercising at the gym are “clearly relevant” because they might prove that Plaintiff’s injuries do not exist or that they are exaggerated.

The Court found that Plaintiff’s Facebook information is not privileged.  Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information.  In addition, Pennsylvania law does not recognize a confidential social networking privilege.  As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”  Further, Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users because the information was sought directly from Plaintiff, who is not an ISP. 

Finally, the Court concluded that Defendant’s request was not unreasonably embarrassing or annoying and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail.  Since Plaintiff’s postings were never truly private, there could not be any unreasonable embarrassment in producing the postings in litigation.  The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information. 

As Judge Walsh points out, social networking is a recent phenomenon and these issues are just beginning to infiltrate the courts.  Although relatively few courts have spoken on this issue, the standard is becoming clear: Post at your own risk. 

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 Another day. Another TWITTER event. This time it involves the National Football League. Last week, star running back Arian Foster sent a copy of a MRI image showing his severely injured hamstring to all of his followers by TWITTER. His “tweet” included an explanation of where his hamstring was specifically damaged.  

The problem is that NFL teams fight hard to keep this type of information private. Foster is one of the top running backs in the league and his availability for the first week of the season, which starts next weekend, was in question. NFL teams often guard this information zealously. They do not want the opposition to find out how injured their players are. Even if a player is not going to play, NFL teams want their opponents to have to prepare as if Foster or another star player would be available.

There is also the gambling angle. The league administration has strong and very specific rules about the disclosure of injury information. Teams must be accurate in the disclosure of their information so that other teams aren’t prejudiced. This, of course, is used by the gambling industry to make sure that the betting lines are accurate. One can only image how quickly the betting line moved before the Houston Texas operator after Foster sent his MRI to the world. Once can also imagine that his MRI was viewed by the team physicians for the other 31 other teams in the league, including the Texans first opponent, just to determine the likelihood that Foster was going to be able to play. On the way to work this morning I was listening to sport talk radio show, were one of the commentators,  an ex-NFL player said that Foster’s MRI showed his opposition exactly where they needed to hit him to do the most damage. 

On the same show, they interviewed Brian Kelly, the head coach of the Notre Dame Fighting Irish football team, about his players’ use of TWITTER. During his interview, he made a great point. He said that TWITTER and Facebook and other forms of social media are here to stay. You cannot tell players, even college ones, that they can’t use it. So, instead, he teaches them how to manage it. 

Employers should use the same approach. Don’t try to prohibit outright use of TWITTER by your employees. Social media is here to stay. I recently read an article that predicted  that -- in three to five years -- e-mail accounts run by social media sites will be used for 80% of the business e-mail in the world. This is stunning. One can only imagine the implications.

Social media isn’t going any where and TWITTER, much to the chagrin of many, isn’t going anywhere either. Employers should assume that their employees will use TWITTER an outright prohibition on TWITTER and social media is doomed to fail.

Players must also adopt a specific policy. This policy must specifically identify the company that should not be disclosed by employees by either via TWITTER or other forms of social media. The policy is important because it gives fair notice to employees that their conduct may result in termination. 

If you ever tried a case in front of a jury, you quickly realize the jurors are not interested in applying the technicalities of the law. Juries are interested in fairness. After they issue a verdict and they walk out of the courtroom, they want to feel like they spent their time dispensing justice, not legal technicalities. 

This is why a policy is so important. It is inherently fair to fire an employee for using TWITTER after they have been advised in writing that doing so could result in their termination. Fair notice is an essential element of the fairness that juries look for when they are deciding cases. This is why a policy is so important. 

Like Coach Kelly, employers should train their employees on the right way to use TWITTER and other forms of social media. Just like with email, employees must assume that every “tweet” will end up on the front page of The New York Times. As everyone knows, “tweets” are potentially discoverable. “Tweets” could be saved for several months or even longer on Blackberries, iPhones and iPads. During this training, employees must also be told that they need to avoid the impulse to TWITTER right away about a work event. You can’t take a tweet back; there is no “pullback” button. Once a tweets is on the internet, its there forever. Employees should be encouraged to be very judicious in their work-related “tweets”, to the extent they are even authorized to do them. And before pushing the send button, employees should to think about the way a potential “tweet” could be used against them or use of other competition.

To protect their confidential information, employers should also monitor the use of TWITTER and other forms of social media. To protect confidential information in the courts, employers must prove that they took reasonable efforts to protect the secrecy of that information. For certain types of employers who know that their employees essentially engage in social  media and are authorized to do it for some business purposes, these employers should actively monitor the internet to make sure that their confidential information and trade secrets are not being disclosed by their employees to the rest of the world.

In the same vein, employers must be very careful to limit access to the most secret information to a small group of employees. As Mark Zuckerberg, Facebook’s founder and CEO stated, privacy in the world is essentially dead. Keeping this in mind, employers should work their IT departments to make sure that their most confidential information is protected by limiting internal and external access; by setting up the data so that it cannot be transferred, copied, and/or printed; and by using software that easily tracks who accesses the document, when and what has been done with it.

So, once again, though the world of TWITTER can provide valuable insight for employers. The NFL literally spends millions of dollars trying to protect information regarding players injuries. Players are often told not even to tell their family about their injuries because teams will fear that this information will be divulged. Now, because of an iPhone and TWITTER, the world can see a very clear picture of Arian Foster’s MRI showing a significant injury to his hamstring.  And there is no way for him to pull it back. This is the kind of story that keeps most employers up at night, and it’s an important lesson for us all.

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According to the Associated Press, doctors in Europe are warning that Facebook may trigger an asthma attack in susceptible users.    According to the reports, such an attack was triggered in an 18-year old man after he logged onto Facebook and saw how many men his ex-girlfriend had “friended”.   The AP quoted a letter published in the medical journal Lancet, which described the victim as having been dumped, and then un-friended, by his girlfriend, and that the sight of seeing her linked to many new male friends “seemed to induce [shortness of breath], which happened repeatedly on the patient accessing her profile.”

Fortunately, the asthma attacks were dramatically reduced when the man consulted with a psychiatrist and “decided not to log into Facebook anymore.”

Employer Take Away:   What should you as an employer take away from this development?      Clearly, this is one of those extreme, somewhat comical, social media accounts. But it also serves as another good reminder of other general points made in our prior “social media advisor” posts.   First, whether employees are checking the profiles of their current or former dating partners, or engaging in other personal activities, on company time, it is important to find the proper (and lawful) balance of effective policies and monitoring to reduce diminishing productivity in the workplace.    Second, it also bears repeating that serious health conditions and disabilities, whether the result of, or expressed during, social networking activities should not be dismissed out of hand, but should be addressed by the company as you would if the situation did not arise out of a social media-related event.   That is true even if the end result after your due diligence is that the story is worth little more than a smile and a chuckle at your Thanksgiving table.

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The National Labor Relations Act (“NLRA”) is one of those employment statutes that is rife with misunderstanding in the minds of many employers who believe that the NLRA is only applicable to the unionized workforce.   In fact, while the NLRA does apply largely to the union setting, and does impose various coverage and industry thresholds, it is important to dispel this employer myth by understanding that the NLRA also applies to private, non-union employee settings as well. And, as the National Labor Relations Board (“Board”) demonstrated this past week, social media is infiltrating this area as well.

Enacted in 1935, the NLRA affords certain protections to employees, including the right to engage in “concerted activities” for their “mutual aid or protection.”   Employers can be found to have engaged in an “unfair labor practice” if they interfere with the exercise of that right.   To further hit you with legal terms, “concerted activities” consist of activities in which an employee engages with, or on the authority of, other employees, and not merely on that employee’s own behalf.

On October 27, 2010, the Board filed a complaint against American Medical Response of Connecticut Inc., after the ambulance service fired an employee for criticizing her boss on Facebook.   After an internal dispute at work, the employee apparently posted negative remarks about her boss on her Facebook page, albeit from her home computer.   That comment apparently prompted “supportive responses from her co-workers”, which then resulted in additional negative comments being posted by the employee about her boss and employment conditions.   The Board’s complaint alleged that the employee was unlawfully terminated for engaging in protected concerted activities with her co-workers.

Employer Take Away:   What should you as an employer take away from this development?

(1)        One cannot overstate the need to create appropriate social media policies that are not – as the Board suggested in last week’s complaint – overly broad and perhaps unlawful on their face.

(2)        When considering taking adverse action against an employee based on – or after obtaining knowledge about – the employee’s social media statements or conduct, you should at a minimum consider whether that employee was arguably engaging in protected activity under a statute such as the NLRA.   Was the employee engaging in activity that bears a relationship to employees’ interests as employees, as opposed to, say, political or non-employment-related interests?   Do the statements evidence the mere lashing out by, or insubordination of, a single employee based solely on his or her own opinion, or is there evidence of an intent or effect of engaging in “concerted” conduct between or among more than 1 employee, such that the activity could be for their “mutual aid or protection”?

            We have seen, and blogged about, the trend of decisions refusing to protect the privacy and substance of many social media statements and acts when they collide with paramount employer and litigation interests.   However, you as an employer still need to walk that fine line and not react in knee-jerk fashion when faced with less than glowing comments posted about you by an employee.

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A “trend” is generally defined as a general course, drift or prevailing tendency.   In the battle between the potential privacy rights of a social networking site user and the desire of a lawsuit party to have full access to the private portions of that user’s profile, the trend favoring full and unfettered access has become clearer with a decision just issued by the Pennsylvania Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc.

In McMillen, the plaintiff was injured during a stock car race, and sued for damages after being rear-ended during a cooling down lap.   He alleged significant physical injuries and overall loss of general health and vitality, as well as an “inability to enjoy certain pleasures of life.” During the lawsuit, the defendants requested that plaintiff identify the name of all sites to which he belonged, and to identify his user name(s), login name(s), and passwords. Plaintiff responded by stating that he belonged to Facebook and MySpace, but he refused to give the other requested information based on confidentiality and privacy grounds.

After reviewing publicly-accessible portions of plaintiff’s sites to discover comments about a fishing trip and possible subsequent car race, the defendants filed a motion with the court to compel the production of the requested information.   The court granted that motion and ordered the plaintiff to provide all of the requested user/login names and passwords.

Recognizing broad discovery rules, the court determined that any information and documents can be discoverable by another party as long as they are relevant to the case and not otherwise privileged. The court in McMillen refused to create a new privilege for social networking sites (none has previously existed), and further found that the private portions of plaintiff’s sites could be relevant to “impeach and contradict his disability and damages claims.”   Specifically, the court noted:

“Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly. . . . When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bring to light relevant information that may not otherwise have been known. Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given [the] admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”

Employer Take Away:   What should you as an employer take away from this development?

(1)        As the trend will likely continue in favor of social media disclosure over privacy objections, you should continue to understand that nothing written or posted on blogs or other Internet sites will absolutely remain confidential and not subject to viewing by the public.   Be vigilant in your policies and practices to make sure that social media-related statements or conduct of your managers and employees do not have the potential to expose your company to liability.

(2)        You should understand that the McMillen case reflects the current sentiment toward open disclosure of social media sites generally, and not just for personal injury lawsuits. You should recognize, therefore, that social media can, and should, be a potential tool and valuable source of information in employment-related cases where an individual’s physical activities and emotional relationships are very often at issue.

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