Friday, May 27, 2011

Court denies defendant's motion to compel plaintiff to "friend" him on Facebook to gain access to photos

A Pennsylvania court recently denied a defendant's request that plaintiff accept his Facebook "friend" request to gain access to plaintiff's photos in connection with a personal injury action she brought following a car accident. The defendant in the case conceded liability but contested the plaintiff's injury claim which involved some serious facial lacerations.

During the plaintiff's deposition, the defendant learned that she had a Facebook account. When the defendant tried to access it, however, he discovered that the plaintiff had her privacy settings switched on and thus the defendant couldn't access some pre- and post-accident photos available there. Accordingly, the defendant brought a motion to compel asking the court to order the plaintiff to "friend" him so that he could gain access to the photos at issue.  Relevant to the court's ruling may have been the fact, as the plaintiff argued, the defendant already had in hand several pre- and post-accident photos produced during discovery.

From the blog Law Technology News:

The plaintiff in a car accident case does not have to accept a friend request on Facebook from the defendant so that the defendant can have full access to the plaintiff's postings and pictures, a Bucks County, Pa., Common Pleas Court judge has ruled.

In Piccolo v. Paterson, Judge Albert J. Cepparulo issued a one-paragraph order denying the motion to compel filed by defendants Lindsay S. Paterson, Lee Anne Paterson, Linsey Paterson, and Allstate Insurance.

The defendants wanted access to the photos of plaintiff Sara Piccolo that she posted of herself on the social networking site.

. . . .

In Piccolo's response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo's deposition about the pictures she posted on Facebook, not any textual postings. He said Paterson had already been provided "as complete a photographic record of the pre-accident and post-accident condition" of Piccolo as she "could reasonably have a right to expect in this case."

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," 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."Lipman said 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.

Because the defendant already received from plaintiff several photos showing her face before and after the accident, the court's decision to deny the defendant access to her Facebook photos probably speaks little about a future court's willingness to compel access to a party's Facebook page.

You can read more coverage here.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2011/05/court-denies-motion-to-compel-plaintiff-to-friend-defendant-on-facebook-to-gain-access-to-photos.html

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