The crux of my WSAJ presentation last year about the discoverability of online social media was that Facebook content fits well into existing civil rules regarding the limitations of discovery, without the need for new legal privileges or constitutional arguments. Regardless of whether the judge eventually decides to protect or release profile information, the results are usually reasonable under the circumstances if counsel fully explain the use of the social networking site, and if counsel do not ask for too much protection (a legal privilege), or alternatively, too much unnecessary personal information. A Pennsylvania judge confirms, in one instancy anyway, that this is true.
In Piccolo v. Paterson, the plaintiff sustained permanent facial scars after an auto collision. She had 95 stitches the day of the collision to repair her lip and chin, which were torn away from her face. The defendant admitted liability, but disputed damages.
Defense counsel argued that he should be able to send a "neutral friend request" to Ms. Piccolo so that he could monitor her daily postings. The Pittsburgh Post-Gazette sums up the rest: Ms. Piccolo 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.
"Defendant Paterson has not made a prima facie showing of need for access to the non- public pages of [Piccolo's] Facebook account," Mr. Lipman said in his motion.
"She has all the photographs she can reasonably use from every different period before and after the accident and she has not asserted that there is likely to be any text in the non- public postings that is material or will likely lead to the discovery of material evidence."
The judge agreed, adding, "'the materiality and importance of the evidence ... is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes' Ms. Piccolo."
In this instance, counsel averted the fatal flaw of arguing for too much, i.e. a privilege:
Mr. Lipman said Ms. Piccolo concedes that her Facebook account "is probably not protected by any evidentiary privilege that has been recognized in Pennsylvania." But he cited Rule of Civil Procedure 4011(b), which precludes discovery that would cause unreasonable annoyance, embarrassment, oppression or burden.
Being reasonable prevails!
