ZK Results – Attorneys Chris Yoskosky and Aaron Weiss Obtain Opinion and Order from Judge Smail (Westmoreland County) Granting Defendant Social Media Log-In Information for Personal Injury Plaintiff
(Westmoreland County, PA) (April 2019). In April of 2019 Zimmer Kunz attorneys Chris Yoskosky and Aaron Weiss obtained an Opinion and Order from Judge Smail, of Westmoreland County, granting their Motion to Compel Plaintiff’s Facebook log-in information. There are no appellate decisions on this issue, and this was the first opinion from Westmoreland County on this issue.
Plaintiff filed suit against the defendant arising out of a motor vehicle accident in 2014. During discovery it was revealed that Plaintiff used her Facebook page to message with two witnesses to the accident. Additionally, she had been in one prior accident in 2009 and two subsequent accidents in 2018. Thus, defendant argued her Facebook page would contain relevant information, including (1) posts and conversations about the present accident, (2) posts and conversations about her other accidents, (3) posts about her health, (4) posts about her physical abilities, (5) posts about any vacations or trips she has been on, etc.
After oral arguments, Judge Smail authored a written opinion, in which he acknowledged Pennsylvania’s “liberal” discovery standard and lack of any applicable privilege for Social Media generally.
Judge Smail then discussed the balancing test set forth by Judge Wettick in Trail v. Lesko, 2012 WL 2864004 (C.P. Allegheny, July 5, 2012), in which the party seeking discovery must make a threshold showing of the relevance of this social media information and articulate some facts to suggest that such relevant information may be contained within the non-public portion of the social media profile. This interest must then be balanced against unreasonable annoyance, embarrassment, oppression, burden, or expense to the plaintiff. Judge Smail cited favorably to three opinions – from Indiana, Washington, and Monroe County – that considered this balancing test and permitted such Social Media Discovery.
In applying this test to the present case, Judge Smail opined that the plaintiff conceded her Facebook contained relevant information including (1) discussions about this accident with witnesses, and (2) reference to her condition compared to the three accidents both prior and subsequent to the present accident. Thus, the required threshold for relevance had been met. Judge Smail then held that the temporary use of a plaintiff’s log-in information (20 days) was not overly burdensome to plaintiff.
This opinion can be found at Brown v. Vargo, No. 2016-5205 (C.P. Westmoreland, Apr. 26, 2019) and is available to view at https://zklaw.sharefile.com/d-s7d98c6e5dc64f679.