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CHAPTER ONE – 7364M

E-Discovery in Pennsylvania Courts

Course Summary

This panel presentation will highlight electronic discovery in our Pennsylvania state courts, the impact of recent case law concerning the taking of "social media" electronic discovery, the absence of any substantial rule-based guidance concerning electronic discovery and its effect on discovery requests/burdens. Faculty: Honorable Mark I. Bernstein Edward T. Butkovitz, Esq. Sophia Lee, Esq. Laurence Z. Shiekman, Esq.

E-Discovery in Pennsylvania Courts

Hon. Mark I. BernsteinEdward T. Butkovitz

Sophia LeeLaurence Z. Shiekman

October 6, 2012

Agenda

1. Overview of the New Amendments to Pennsylvania Rules

2. Comparison of Pennsylvania Rules and Federal Framework

3. Survey of Recent Pennsylvania Cases

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Overview of the New

e-Discovery Amendments

Effective August 1, 2012

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Pa.R.C.P. 4009.1 Production of Documents and Things. General

Provisions• (a) Any party may serve a request upon a party … to

produce and permit the requesting party … to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, [electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably useable form] and electronically stored information), or to inspect, copy, test or sample any tangible things or electronically stored information, which constitute or contain matters within the scope of Rules 4003.1 through 4003.6 …[;], and may do so one or more times. 4

Pa.R.C.P. 4009.1 Production of Documents and Things. General

Provisions (cont’d)• (b) A party requesting electronically

stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.

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Pa.R.C.P. 4009.11 Request Upon a Party

• (b) The request shall set forth in numbered paragraphs the items to be produced either by individual item or by category, and describe each item or category with reasonable particularity. Each paragraph shall seek only a single item or a single category of items. The request shall be prepared in such fashion that sufficient space is provided immediately after each paragraph for insertion of the answer.

Note: A request seeking electronically stored information should be as specific as possible. Limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues.

See also Rule 4009.1 generally regarding electronically stored information.

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Pa.R.C.P. 4011 Limitation of Scope of Discovery [and Deposition]

• No discovery [or deposition], including discovery of electronically stored information, shall be permitted which– (a) is sought in bad faith;

– (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense

…

Note: As with all other discovery rules, this rule governs electronically stored information. See the explanatory comment preceding Rule 4009.1.

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2012 Explanatory Comment to Pa.R.C.P. 4009.1– Electronically Stored

Information• A. No Importation of Federal Law

Though the term “electronically stored information” is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law as discussed in further detail below.

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2012 Explanatory Comment to Pa.R.C.P. 4009.1– Electronically Stored Information

(cont’d)• B. Proportionality Standard

As with all other discovery, electronically stored information is governed by a proportionality standard in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes. The proportionality standard requires the court, within the framework of the purpose of discovery of giving each party the opportunity to prepare its case, to consider:

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(cont’d)(i) the nature and scope of the litigation, including the

importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.

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(cont’d)• C. Tools for Addressing Electronically

Stored InformationParties and courts may consider tools such as electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs. When utilizing non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties. See, e.g., Fed. R. Evid. 502(c).

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Differences from Federal Rules

• No mandatory 26(f) conference (early meet and confer on ESI)

• No explicit Rule 26(b)(2)(B) (limitations on discovery of data that is not reasonably accessible)

• No safe harbor (FRCP 37(e))

• No explicit restriction on the number of forms in which ESI must be produced (FRCP 34(b)(2)(E)(iii))

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PENNSYLVANIA COURT SURVEY

How are Pennsylvania courts dealing with e-Discovery requests?

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Facebook

• 955 million monthly active users. • 169 million monthly users in the U.S.• Facebook.com received 9% of all U.S. Internet

visits in April 2012.• 300 million photos are uploaded every day.• Average Facebook user has 130 friends.

Sources: http://www.jeffbullas.com/2012/04/23/48-significant-social-media-facts-figures-and-statistics-plus-7-infographics/#DHW2IGZWG1ZS06bq.99 (last visited September 9, 2012); http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last visited September 9, 2012); http://www.statisticbrain.com/facebook-statistics/ (last visited September 9, 2012); http://www.zdnet.com/blog/facebook/facebook-ipo-final-numbers/13257 (last visited September 9, 2012)

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Leading Case

Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 5, 2012) (Wettick, J.)

Facts

• Plaintiff suffers serious pain from car accident, which limits activities.

• Defendant admits liability.

• Both parties seek access to the other’s Facebook.

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Trail v. Lesko (cont’d)

Holding

• Motions to compel access to non-public portion of social networking sites denied. Intrusion from requests not offset by showing discovery would assist in the case.

Reasoning

• Plaintiff’s Motion:

– Defendant’s liability was not in issue.

– Defendant’s Facebook information not relevant remaining issue, i.e., damages.

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• Defendant’s Motion:

– Defendant’s request was unreasonable.

– Defendant presented photographs from Plaintiff’s public page, showing Plaintiff drinking.

– Photographs did not reveal date.

– Photographs not inconsistent with Plaintiff’s claimed injuries.

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• Pa.R.C.P. 4011 (discovery must not cause unreasonable annoyance, embarrassment, oppression…)

• “Reasonableness” requires consideration of the “level of intrusion” compared to the potential value of discovery.

• “Level of intrusion” measured on a scale of 1(lowest) to 10 (highest)

• Typical intrusion if information has been voluntarily made available to many other people=2

• “For a level 2 intrusion, the party seeking the discovery needs to show only that [1] the discovery is reasonably likely to furnish relevant evidence, [2] not available elsewhere, [3] that will have an impact on the outcome of the case.”

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• Greater intrusion requires greater need.

• Example: Plaintiff sued doctor who performed breast implant surgery for lack of informed consent.

• Plaintiff wanted names of other women who received implants to discover what Defendant communicated to them.

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• Intrusion= level 9 or 10. Intrusion would be unreasonable. Witnesses “were not essential because the case could be decided based on the testimony of the plaintiff and the physician.”

• Considerations relevant to intrusion– Number and relation of Facebook friends.

– Has material been widely disseminated.

– Was recipient subject to legal obligation to keep information confidential.

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Did the Court Create a Higher Discovery Standard?

• “For a level 2 intrusion, the party seeking the discovery needs to show only that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.”– 1. Reasonably likely to furnish relevant

evidence;

– 2. Unavailable elsewhere; and

– 3. Impact outcome of case.

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Survey of Pennsylvania Cases

McMillen v. Hummingbird Speedway Inc., No. 113-2010 CD (Jefferson C.P. Sep. 9, 2010) (Foradora, P.J.) (Opinion)

Plaintiff injured in a stock car race.

Information on publicly available Facebook page suggested that Plaintiff exaggerated injuries.

Facebook not privileged. Plaintiff ordered to provide login and password information.

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Survey of Pennsylvania Cases (cont’d)

Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland C.P. May 19, 2011)

(Saylor, J.) (Opinion)

Plaintiff injured while operating forklift at Defendant’s warehouse. Plaintiff claimed “permanent diminution in the ability to enjoy life and life’s pleasures.”

Public portion of Plaintiff’s Facebook and MySpace pages, Defendant revealed: (1) Plaintiff’s interests included “ridin” and “bike stunts”; (2) Photographs showed Plaintiff with his motorcycle before and after an accident; and (3) Photographs showed Plaintiff with scar from the accident visible.

Motion to compel access Plaintiff’s non-public page granted.

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Largent v. Reed, No. 2009-1823 (Franklin C.P. Nov. 8, 2011) (Walsh, J.) (Opinion)

Plaintiff claims that she suffered from depression and needed a cane to walk.

Plaintiff’s public Facebook contains photographs showing her enjoying life with family and a “status update” about “going to the gym.”

Motion granted. Information relevant to show Plaintiff’s injuries were exaggerated.

Plaintiff ordered to provide login and password for a period of 21 days.

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Arcq v. Fields, No. 2008-2430 (Franklin C.P. Dec. 2011) (Herman, J.) (Opinion)

Access to Plaintiff’s Facebook page denied.

Defendant failed to articulate a reasonable basis to conclude that private profile contained relevant information.

Court strongly suggests threshold showing is based on information on party’s public profile, though this is “not an absolute necessity.”

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Gallagher v. Urbanovich, No. 2010 – 33418 (Montgomery C.P. Feb. 27, 2012) (Carpenter, J.) (One-page Order)

Plaintiff assaulted during recreational soccer game.

Court granted Plaintiff’s motion to compel Defendant’s Facebook login and password information for 7 day period without requiring any threshold showing.

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Piccolo v. Paterson, No. 20009-04979 (Bucks C.P. Mar. 2011) (Cepparulo, J.) (Order)

Motion to compel access to Plaintiff’s Facebook photographs denied.

No threshold need for the information demonstrated.

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Martin v. Allstate Fire & Casualty Ins. Co., (Phila. C.P. Dec. 13, 2011) (Manfredi, J.) (Order)

Defendant’s motion denied.

No threshold showing that Plaintiff’s Facebook page might contain relevant information.

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Kennedy v. Norfolk Southern Corp., Case ID 100201473 (Phila. C.P. Jan 4, 2011) (Tereshko, J.) (Order)

Injuries caused by collision with a train. Plaintiff claimed he could no longer engage in skeet shooting.

Defendant’s motion denied despite Plaintiff’s inclusion of “shooting” among his interests on his public profile.

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Kalinowski v. Kirschenheiter, No. 2010-6779 (Luzerne C.P. 2011) (Van Jura, J.) (Order)

Plaintiff injured in car accident and claims to be limited in ability to work and perform daily activities.

Defendant requested access to Plaintiff’s Facebook. Pointed to photograph of Plaintiff lounging comfortably.

Motion denied.

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Piccolo v. Paterson, No. 2009-04979 (Bucks C.P. Mar. 2011) (Cepparulo, J.) (Order)

Plaintiff sustained lacerations to her face in a car accident.

Plaintiff refused to voluntarily accept Facebook “friend request” from Defense counsel.

Motion to compel acceptance denied.

Plaintiff had already provided numerous photographs taken before and after accident.

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Consensus that social networking information is not privileged

• The majority of Pennsylvania trial court cases have adopted a “threshold” test—

• Requesting party must make a preliminary showing that access to non-public profile is reasonably likely to lead to relevant information.– But see Gallagher v. Urbanovich.

• Where does threshold information come from?– 1. Public portion of profile

• Courts favor information that comes from public portion of profile. Presumably because the level of intrusion to the party is reduced when they have made information publicly available.

– 2. Separate discovery mechanisms. • See Largent v. Reed (“[I]t might be advisable to submit interrogatories

and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.”).

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• Discovery motions are fact specific.

• Considerations include—

– Number and type of Facebook friends, privacy setting used, nature and source of threshold information, nature of case, alternate sources of information, need for information …

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E-Discovery Management

In-House Counsel Perspective

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Areas to Consider for “Agreements Between the Parties on

Production Formats and Other Issues”1

• Key Custodians

• Search Terms

• System Repositories

• Electronic Documents

• Text Messages and Voicemail

• Social Media

1 See Note to Rule 4009.11.

Areas to Consider for “Agreements Between the Parties on

Production Formats and Other Issues”

• Data Deduplication

• Predictive Coding

• Confidentiality and Protective Orders

• Clawback Agreements

• Privilege Log

• Production Format