Plaintiff Can’t be Forced to Accept Defense Counsel’s Facebook Friend Request in Personal Injury Case — Piccolo v. Paterson

[Post by Venkat Balasubramani]

Piccolo v. Paterson, No. 2009-04979 (Pa. Ct of Common Pleas; May 5, 2011) [.pdf]

In addition to cases dealing with whether Facebook posts are discoverable in civil cases, courts and litigants continue to grapple with the logistical issues of how a party seeking such evidence can get access to it, or make arguments about whether or not they are entitled to access certain information contained in the profile.

Piccolo v. Paterson was a personal injury case where the plaintiff claimed she suffered lacerations to her face from the impact of an air bag. In her deposition, she was asked whether she posted pictures to Facebook and she said yes. Defense counsel asked if Piccolo would accept a “neutral” friend request from defense counsel so defense counsel could view the pictures. Piccolo later demurred, stating that the “materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden ….” Defense counsel brought a motion to compel. Defendant cited to McMillen v. Hummingbird Speedway, where the court ordered the plaintiff to provide his Facebook password to defense counsel.

The court rejected defendant’s arguments, noting that defendant had already been provided an accurate photographic representation of the relevant evidence. As the Legal Intelligencer notes:

Piccolo [the plaintiff] allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.

Plaintiff’s counsel argued that there was no showing from the defendant that plaintiff had posted photos which were inconsistent with what she alleged in the lawsuit, or that any of the other material in plaintiff’s Facebook profile was in any way relevant to the case. The court granted plaintiff’s motion in a brief one paragraph order which did not contain any reasoning, so it’s tough to tell the precise basis for the court’s decision.

It looks like litigants (or their lawyers) are overreaching when they seek social media evidence, and at least some courts are pushing back. (Plaintiff’s lawyers are also starting to advise their clients as to the dangers of using social networking sites, at least during the pendency of ligitation. See “Social Networking Warning Letter Form for Clients.”) In this case, there was little justification to force plaintiff to “friend” defense counsel and give defense counsel access to personal details that only plaintiff’s Facebook friends would be privy to. There was some confusion as to whether plaintiff’s profile was “public,” so it’s unclear as to whether defense counsel truly would be privy to information that only a select group of individuals would have access to. Regardless, given that defense counsel had access to ample photos of plaintiff’s face from shortly after the incident, and was provided photos later, and could evaluate plaintiff’s injuries contemporaneously, defendant didn’t have a credible argument for rooting around in plaintiff’s Facebook profile. As a Facebook friend, defense counsel would be exposed to information, including personal details about the plaintiff’s life, that would not be relevant to the case.

I blogged about McMillen v. Hummingbird Speedway and had some qualms with the court’s approach of forcing a litigant to turn over their Facebook password. Among other things, there is no way that all of the information in a profile could be relevant:

for starters, the court totally glosses over the relevance analysis. There is no way that all of the information in the plaintiff’s social networking site can be relevant to the dispute, and the court’s decision grants defendant access to both relevant and irrelevant information.

It looks like the court took the correct approach here.

In another decision addressing a similar issue, the court ordered the litigants to both friend the judge so the court could review the materials and address the question of relevance. (“Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute.”) That was a wacky approach to say the least, but it looked like the court did not even need to consider it in this case, given the lack of relevance of the materials which defense counsel was seeking.

Social networking evidence is generally viewed as an evidentiary treasure trove for lawyers, but as is becoming increasingly clear, it’s easier said than done to get access to it. Statutes such as the Stored Communications Act restrict the networks’ ability to disclose private communications, which may or may not include wall posts, in response a civil subpoena. An alternative is to get the information directly from the party in question, but if the party seeking the information doesn’t know exactly what is in the profile, they will have a tough time articulating relevance.

As a final note, I wonder if there are any ethical issues lurking in the background for a lawyer who “friends” a party in order to gain access to evidence (even when there is no deception involved in the friending process).

Other coverage:

Legal Intelligencer: “Facebook Postings Barred From Discovery in Accident Case

The Employer Handbook: “Court bars Facebook “friending” in discovery

Previous posts:

Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway

Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville

Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act — Crispin v. Audigier