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July 2012 Discovery Law Update

In Trail v. Lesko, Allegheny County CCP, GD 10-017249 [Wettick, J.] the Court of Common Pleas of Allegheny County has held that the plaintiff is not entitled to discovery of information on the Facebook profiles of a person involved in a fatal car crash.

In this case Michael Trail had been injured in a car crash when his vehicle was struck by Mr. Lesko.  Mr. Trail had argued that Mr. Lesko was intoxicated and that Facebook postings by Mr. Lesko helped to prove his intoxication and his fault for the crash.  Ultimately, Mr. Lesko admitted liability for the crash, a key to the decision in this case, as the only remaining issue to be litigated is damages.

Judge R. Stanton Wettick Jr. held that discovery into a person’s Facebook profile, when that party has not “friended,” as the term is used, is unreasonably intrusive under Pennsylvania Rule of Civil Procedure 4011(b).  The court held that this discovery is not permitted as it causes “unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party.”  Indeed, Pa RCP 4011 states:

No discovery or deposition shall be permitted which

(a)  is sought in bad faith;

(b)  would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;

(c)  is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6;

(d)  is prohibited by any law barring disclosure of mediation communications and mediation documents; or

(e)  would require the making of an unreasonable investigation by the deponent or any party or witness.

Judge Wettick, in yet another of his simply divine opinions, went on examine many Pennsylvania and other jurisdiction’s decisions on this issue and to find that even minimal intrusiveness in this context is enough to bar discovery of the information.  Judge Wettick realized that much of the information is already exposed to other people because it is posted in a manner that makes it available to friends, but still found this to be sufficient to bar discovery in this case because liability is no longer in dispute.  As such, the information regarding intoxication and fault is no longer relevant to the case.  To read the full decision, please click here.