January 10, 2011

Peek-a-Boo, I See You!

By Kevin L. Connors, Esquire

The year is almost 2011, and “homo sapiens” has attained evolutionary heights consistent with mere 24 hour interconnectivity, such that burbs in the western provinces of China register on social networking seismographs in Nova Scotia.

The point being, it is no longer your smart phone, your laptop, the cloud that you are considering emigrating to, as it is that all of us now live in glass houses, filled with self portraits and convex mirrors.

Yes, you are on Facebook, we know, originally only to connect with high school and college friends that you have not thought of in years, and you think it okay to stray from the claim or file in front of you, to run a quick social networking search on whomever or whatever.

And, yes, we are all out there, all searching for whatever we think we need to search for, although the search engines are now busy searching for us.

It is a Brave New World.

The glass house is an invitation to look inside. A judge was asked to rule on objections to the discovery requests seeking Plaintiff’s social network information.

The problem is, that the glass house is an invitation to look inside, as evidenced by the recent trial court opinion issued in McMillen v. Hummingbird Speedway, Inc., wherein Judge Foradora of the Jefferson Court of Common Pleas, was asked to rule on objections that a personal injury Plaintiff raised in response to the discovery requests of a defending party seeking Plaintiff’s social network information, such as the Plaintiff’s social networking IP addresses, with the Plaintiff claiming, as though it might mean something in the context of social networks that are anything but private, that the defending party’s discovery request intruded on the personal injury Plaintiff’s privacy rights, resulting in the defending party filing a Motion to Compel Plaintiff’s disclosure of the Plaintiff’s social networking profiles and addresses, so that the defending party could, within the context of the Pennsylvania’s Rules of Civil Procedure, investigate whether the Plaintiff had posted descriptions or photographs of activities that might be inconsistent with the injury claims being made by the Plaintiff in the personal injury lawsuit.

“You talking to me, you talking to me?”

Of course, that was Robert DeNiro’s character, in the infamous Martin Scorsese Taxi Driver movie, talking to himself in a mirror, as the Facebookians among us sometimes are wont to do about personal things that in pre-social networking days would not even rise to the level of being fodder for polite reflections in overcrowded elevators. 

In today’s digitally-driven social networking world, it is never how important the thing or event is, it is very simply that you have designated it important enough to make it public through the megaphone of Facebook, Twitter, or MySpace, which, at this point, probably has as many subscribers as this e-mail.

The trial court blithely rejected every argument made by the Plaintiff, thereby overruling the Plaintiff’s objections to the defending party’s social networking discovery requests, and compelling the Plaintiff to produce this information.

Sifting through the Pennsylvania Rules of Civil Procedure dealing with issues of both discovery and privilege, the trial court blithely rejected every argument made by the Plaintiff, thereby overruling the Plaintiff’s objections to the defending party’s social networking discovery requests, and compelling the Plaintiff to produce this information, although the information ordered to be produced would still be subject, in any trial phase, to any and all evidentiary rules that might be applicable to authenticating the information for admission into trial.

Although there are no appellate decisions of precedential significance in Pennsylvania on this issue, it is only a matter of time before there are, as there are other jurisdictions faced with similar discovery and evidentiary issues, with the general rule seeming to be, that fair is fair, and that if a litigant, represented or not, has chosen to go “public” through a social networking service, that information once “published” is no longer “private”, such that the information should and must be discoverable as being “public” for all of the world to view, whether limited to a defense counsel preparing for a personal injury Plaintiff’s deposition, or, perhaps, a jury hearing a personal injury case being presented with social networking evidence at odds with testimony offered by an injured party.

The parties seeking the social networking information cannot “friend”, directly or indirectly, the person from whom the information is being sought.

Although McMillen is a decision that will resonate through the personal injury litigation universe, great caution must be exercised, whether in a pre-litigation claims investigation phase, or in a post-complaint discovery phase, that the party seeking the social networking information, must play by all applicable rules, and one rule that seems absolute, is that the parties seeking the social networking information cannot “friend”, directly or indirectly, the person from whom the information is being sought; to do so, not only violates the rules imposed by the social networking sites, which uniformly prohibit such activity, but such a search would also potentially render the sought-after information as invalid, and inadmissible. 

There are simply no excuses for breaching this very simple rule.

Practical Suggestions

By all means, “seek and find” remain the operating principles upon which claims must be investigated, and lawsuits must be defended. 

With time still left on the game clock, you will have many opportunities to seek out and discover whatever information might be “public”. 

To do so, however, the following guidelines are suggested:

• Strict adherence to all Rules of Civil Procedure, irrespective of jurisdiction, applicable to both discovery and evidence;
• Strict adherence to all jurisdictional decisional authorities, dealing with social networks;
• Strict adherence to privacy guidelines, established by individual social network sites;
• Strict avoidance of any inappropriate contact, using both common sense and the generic rule of “how would I like it if they did that to me?”; and,
• Develop claims and litigation-specific protocols for seeking social networking information, to include formal social networking profile preservation requests.

The general rule that will likely evolve throughout all jurisdictions on this issue, will be “ask nicely” and you “shall receive”.  Be formal, thorough, and direct in asking for this information, and, under no circumstances, should you allow an objection or refusal to produce to terminate your search for the truth”.

Assume further that you will receive no cooperation from the social network service/sites, as they are too busy making money to understand, let alone respond, to the importance of how relevant these disclosures and posted information on social network sites might be, to litigants debating the propriety of privacy versus publication.

Keep in mind that the trial court’s overruling of the objections raised by the Plaintiff and McMillen should apply across the board in any litigation, where inconsistent statements might be both relevant and admissible.

Questions

Questions concerning casualty litigation practice and procedures, can be directed to our general litigation department attorneys.

Questions concerning issues with regard to workers’ compensation litigation, can be directed to our workers’ compensation attorneys.

ConnorsLaw LLP

Our casualty litigation practice group routinely defends litigation for self-insureds, third-party administrators, and insurance carriers throughout Southeastern and Eastern Pennsylvania, appearing in state and federal civil courtrooms in Philadelphia, as well as in the surrounding counties of Bucks, Montgomery, Delaware, Chester, Lancaster, Berks, Lehigh, Northampton, and Schuylkill.

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