"Private" Postings Nevertheless Discoverable
By Katerina Milenkovski, Litigation News Associate Editor – August 2, 2013

A judge ordered the parties in a personal injury lawsuit to retain a neutral forensic computer expert, at defendants’ expense, to review plaintiff’s private Facebook postings for evidence of activities inconsistent with her alleged injuries. In Perrone v. Rose City HMA, LLC [PDF], plaintiff Grace Perrone claimed to have suffered severe, life-altering, and disabling injuries as a result of a fall at the Lancaster Regional Medical Center (LRMC). Perrone alleged that her injuries made it impossible for her to go for walks, garden, bicycle, or even to knit or sew.

Discovery Dispute Leads to Motion to Compel
During settlement discussions, the defendants had produced photographs of Perrone from her Facebook page depicting her shoveling snow, climbing up a snow bank, and riding a sled downhill on her stomach, face first, tumbling, and laughing—all activities inconsistent with her alleged injuries. Perrone’s Facebook page indicated that the photos were posted on February 6 and 13, 2010, a few weeks after the alleged injuries at the LRMC and coincident to two significant snowfalls in the area.

Perrone claimed that the while she posted the photos to Facebook in February of 2010, they were actually taken at some other, unidentified time. The defendants introduced evidence that there had not been a comparable snowfall in Lancaster County, Pennsylvania, since February of 2003, and argued that the color of the vehicle inspection stickers visible in the photos was consistent with the photos having been taken in 2010. The defendants sought further information about the photos through traditional discovery, but Perrone refused, asserting that the photos in question predated her January 2010 injuries and that any additional inquiry about them was irrelevant and beyond the scope of permissible discovery. The defendants then moved the court to compel production of Perrone’s Facebook login information so that they could review her private postings for additional information relevant to both her injuries and her credibility.

Defendants Make Strong Showing In Support of Discovery
In their motion, the defendants acknowledged that where similar access to social networking accounts had been sought in prior cases, the courts had typically denied the requests. However, the defendants also noted that in most of those prior cases, there was no reason to believe that the social networking site contained relevant information. In this case, photos posted on the publicly accessible portions of Perrone’s Facebook page strongly contradicted her claims of injury. In addition, because Perrone claimed that the photos were taken prior to 2010, defendants sought to discover the metadata associated with the photos, which could include the date the photos were taken.

“In this case, there was a pretty good showing by the defendants that there was relevant information on that Facebook page that would destroy the plaintiff’s case,” says James A. King, Columbus, OH, vice-chair of the ABA Section of Litigation’s Trial Evidence committee. “Facebook is the modern equivalent of a diary. A diary is discoverable as long as you can show that there is some potentially relevant information in it. The court can put protections in place to shield other, private information in the diary. But the relevant information is discoverable.”

Expectations of Privacy Trumped By Discovery Objectives
“I think you do have some expectation of privacy,” says Richard S. Stockton, Chicago, cochair of the Section of Litigation’s Technology for the Litigator Committee, “but if you file a lawsuit based on injuries, are you allowed to hide things based on your expectation of privacy where those things have a bearing on your lawsuit? I think whatever expectation of privacy you may have, it stands beside the point where you are in litigation and classic rules regarding discovery apply.”

The plaintiff’s lawyers, in opposing the defendants’ motion, argued that the defendants should not be allowed unlimited access to private Facebook settings where photos taken at an unknown time may exist. As Stockton notes, “the judge basically said, OK, if that’s your concern, I’ll appoint a neutral forensic expert who will get in, get what they need, and get out. They won’t be fishing or looking at other things the way an attorney might if they were granted access to the account.” The court limited the expert’s review to photos of and references to snow between January 27, 2010 and February 13, 2010.

Creative Ways to Access Information While Maintaining Privacy
There might have been alternative ways to get at the information using traditional discovery and without having to resort to the use of a forensic expert. “If the photos were on a cellphone or a camera, the photos would be in sequential order. Perhaps the defendants could have compelled production of the data drive or the memory card used to upload the photos to see when the pictures were taken,” posits Stockton.

“The order is an interesting attempt to strike a balance between the respective rights of litigants in cases such as this one,” observes Kevin J. O’Connor, River Edge, NJ, Sound Advice editor for the Section’s Employment and Labor Relations committee. “I think it is unduly restrictive, but that might be a function of the defendants’ insistence on gaining access for the purposes of those pictures relating to the snow storm. My practice in employment matters is to attempt access to the entirety of Facebook page entries which, in my view, are by their very nature not privileged and are at issue in most cases that I deal with.”

O’Conner points out that the judge’s approach is similar to the approach taken in Barnes v. CUS Nashville, LLC, a federal case where the judge offered to “friend” the litigants and conduct an in camera review of their Facebook pages, after which he would disseminate to both parties those records he deemed relevant. “Barnes showed how it is important for the court to get involved to protect the rights of both sides, because the truth is that some litigants are caught exaggerating or outright lying about the severity of their injuries. It is an all-too-familiar experience,” states O’Connor.

“I think it is good for lawyers to counsel clients on the costs of litigation, which go beyond just the monetary costs. There are also privacy costs. There is often personal information that’s going to be reviewed by a lot of people. You need to be prepared for that,” cautions Stockton.

Keywords: Facebook, discovery, privacy, metadata, photos, forensic expert

 
Related Resources
Ethical Breach by Class Counsel Does Not Defeat Certification
Court Finds CAFA Ambiguous, but Clear, on Attorney Fees