Daniel E. Cummins.

Over the past year, the Pennsylvania state trial and appellate courts have continued to grapple with issues pertaining to social media discovery as well as the admissibility of social media evidence at trial.

Discoverability of Social Media Content

In Kelter v. Flanagan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Monroe County Judge David J. Williamson followed the developing common law that permits a party access to another party's private social media pages only when it has been first established that information relevant to the litigation can be seen on the public pages of that profile. In Kelter, Williamson granted a defendant's motion to compel a plaintiff to provide the defendant's counsel with her Instagram account log-in information in order to allow for further discovery of the information on that profile.

This case arose out of a motor vehicle accident. According to the opinion, the plaintiff initially testified at her deposition that she did not maintain any social media accounts. When confronted with proof to the contrary, the plaintiff then admitted that she maintained an Instagram account and asserted that she had allegedly misunderstood the question presented.

Defense counsel then reviewed posts from the plaintiff's Instagram account from the time period shortly after the accident that were available for public access on the plaintiff's Instagram account. According to the opinion, those posts seem to indicate that, despite the plaintiff's claims of limitations following the accident, the plaintiff had engaged in vigorous physical activity both before and after the accident, such as references to shoveling snow and going to the gym.

When the plaintiff declined to provide any additional Instagram account information, the defense filed this motion to compel, which, as noted, was granted by the court.

The court ruled in this fashion given that the defense had made the required threshold showing that the public pages on the plaintiff's profile suggested that more information may be found on the private pages of the same profile.

In granting the defense limited access to the private pages of the site for discovery purposes the court ordered that the defense not share that information with anyone not related to the case. The court's order further mandated that the plaintiff would not remove or delete any content from that account.

Confirming that there is a split of authority on this issue among the trial courts of Pennsylvania, a contrary result was handed down in the recent Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

The Allen case arose out of a plaintiff's alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff's social media profiles.

In his detailed opinion, Judge Craig Dally of Northampton County provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down around the commonwealth by various county Courts of Common Pleas as well as by courts from other jurisdictions.

No Pennsylvania appellate court decision was referenced by the Allen court as there are apparently still no such decisions to date on this emerging issue.

In his opinion, Dally noted that the defense had pointed out discrepancies between the plaintiff's deposition testimony regarding her alleged limitations from her alleged accident-related injuries and the photos available for review on the public pages of the plaintiff's Facebook profile depicting the plaintiff engaging in certain activities.

Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff's public pages to allow for discovery of information on the plaintiff's private pages.

In a footnote, the court emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.

The court additionally noted that, in any event, “it would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party's social media account by requiring the responding party to turn over their username and password, as requested by the defendant in this case.” The court found that this type of access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a request for discovery that was not properly tailored with reasonable particularity as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant's motion to compel was denied.

As such, it appears that Dally was generally opposed to the notion that discovery should be allowed into the private areas of parties' social media sites and, as such, he tailored his opinion to secure this desired result.

The above recent trial court cases on the discoverability of social media information continues to confirm that, in the absence of appellate guidance on the issue, there will be uncertainty as to whether a particular Court of Common Pleas in a given county will allow for further access of a social media site in response to a motion to compel.

Admissibility of Social Media Content

Over the past year a notable appellate social media evidentiary decision on the separate topic of admissibility of such information at trial was also handed down in a criminal court setting.

In the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary. It is expected that this ruling in the criminal court context will be the same when it eventually arises in a civil litigation matter.

The court in Mangel affirmed an Erie County trial court decision denying a prosecutor's motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant. The Mangel court ruled in this fashion after noting that social media accounts can be easily hacked or faked. Both the trial court and the appellate court in Mangel found that merely presenting evidence that the posts and messages came from a social media account bearing the defendant's name was not enough to admit the evidence at trial.

The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and email messages are authenticated. The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), which dealt with the separate but similar issue of the admissibility and authentication of cellphone text messages.

In the 2018 Commonwealth v. Mangel decision, the court noted that the Koch court had previously held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”

The Mangel court ruled, in a case of first impression, that the same analysis should also apply to social media posts in the criminal court context. As stated, it can be expected that a similar ruling would be handed down in the context of a civil litigation matter should this issue resurface in the future.

Publication of New Social Media Decisions

To review a comprehensive compilation of social media discovery decisions handed down to date in Pennsylvania, one can freely access the Facebook Discovery Scorecard on the Tort Talk blog at www.TortTalk.com. Copies of the decisions found on the scorecard can be downloaded by clicking on the case names.

While the Facebook Discovery Scorecard is comprehensive, it is not represented to be complete. There may be other decisions out there that have not been publicized.

Continuing publication and widespread dissemination of the trial court decisions on these still novel social media issues is important and beneficial to the bench and the bar as a whole. Should you happen to have or come across a social media decision, please send a copy to [email protected] in order that the Facebook Discovery Scorecard can be continually updated as this new common law develops at the trial court level and without any appellate guidance to date.

Daniel E. Cummins is a partner in the Scranton, Pennsylvania insurance defense firm of Foley, Comerford & Cummins where he focuses his practice on the defense of car and trucking accident matters, UM/UIM matters, premises liability cases and products liability litigation. He is the sole creator and writer of the Tort Talk blog (www.TortTalk.com) and also offers mediation services through Cummins Mediation Services. Contact him at [email protected].