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To Compel Discovery Of A Party’s Social Media Content In Pennsylvania, There Must Be A Hook

Pennsylvania trial courts have been particularly active in the past few years in issuing opinions regarding how much, if any, of a party’s non-public Facebook and other social media content are subject to discovery in litigation. A July 2012 opinion issued by Judge Wettick in Allegheny County, Trail v. Lesko, highlights these increasing discovery disputes and outlines the recent trends of the courts addressing the disputes. As Judge Wettick found, courts have compelled very broad access to social media content in cases where one party has articulated that the publicly available portions of the other party’s social media site contains information relevant to the prosecution or defense of a claim.

Although there are no appellate court opinions on this subject matter in Pennsylvania, there are several trial court opinions. On the one hand, some of the cases permit very broad access to Facebook and other social media content. For example, at least three written opinions in Pennsylvania since 2010 have required the party from whom discovery is sought to provide his or her username, password or other login information to the requesting party. In these cases, the requesting party provided the court with specific evidence from the individual’s publicly accessible pages showing the likelihood that full access to the social media account would garner further relevant information. In Zimmerman v. Weis Markets, Inc., the plaintiff claimed personal injuries from a workplace injury and his public profile said he enjoyed “ridin” and “bike stunts” and showed pictures of him with a black eye and his motorcycle both before and after the workplace accident at issue in the litigation. And, as one Pennsylvania trial court put it in McMillen v. Hummingbird Speedway Inc., “[w]here there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, . . . and given [the case law’s] admonition that the courts should allow litigants to utilize ‘all rational means for ascertaining the truth,’ . . . and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”

On the other hand, a number of Pennsylvania trial courts, in written opinions, have completely denied any and all access to a party’s social media content. Many of the requesting parties in these cases failed to identify any compelling or specific reason for obtaining access to the other party’s non-public social media content. These courts have concluded that the mere fact that a party has a social media account, without anything more, is insufficient to justify broad discovery access to the account.

In Trail, Judge Wettick provides a comprehensive review of Pennsylvania’s case law addressing this question. Judge Wettick also highlights cases from a number of other jurisdictions, which are generally consistent with the approach of Pennsylvania courts that have addressed this question in that the other jurisdictions tend to require some factual predicate suggesting the existence of relevant information prior to ordering access to the information being sought. Unlike Pennsylvania, though, some other jurisdictions have sought to establish more of a middle ground between wholesale denial of the request for social media content and unlimited access to the user’s profile. Judge Wettick reached what is perhaps the obvious conclusion from these cases: litigants seeking access through discovery to a party’s Facebook or other social media content must show that there is a sufficient likelihood that the discovery requested will provide relevant evidence that is not otherwise available. Further, Judge Wettick said the court must consider the level of intrusiveness as balanced against the need for the discovery. Although courts are still wrestling with this question and the answer will continue to evolve, the courts seem to fall back on the age-old principle that discovery should not be an unbridled fishing expedition into a party’s private information. However, with a big enough hook (i.e., publicly accessibly portions of the social networking site suggesting that further relevant postings are likely to be found by access to non-public portions), Pennsylvania courts are willing to provide very broad access to a party’s social media content.

Understanding the Pool Lift Issue – David Raizman Quoted in Lodging Hospitality Online Story of the Day

Los Angeles partner David Raizman was quoted in Lodging Hospitality Online’s story of the day “Understanding the Pool Lift Issue”. David wrote on this issue earlier this year after the DOJ’S action extended to January 31, 2013, a compliance deadline that had been March 15, 2012 and was then extended to May 21, 2012. To read the full story click here.

Discrimination Claims Based on Denial of Religious Clothing Is “Low Hanging Fruit” to EEOC

At a recent workshop for attorneys, the Equal Employment Opportunity Commission provided guidance on what employers should consider when enforcing a dress code policy on religious clothing.

A senior EEOC attorney described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts. Among the cases the EEOC is investigating are claims of religious discrimination where employees have been disciplined or otherwise disadvantaged for donning Muslim head scarves, Sikh turbans and yarmulkes. The EEOC is also pursuing cases involving religious tattoos. In one case, EEOC recently sued a Burger King restaurant for religious discrimination because it fired a female cashier, who is a Christian Pentecostal, for refusing to wear uniform pants. A tenet of the Christian Pentecostal faith is that its members should not wear the clothing of the opposite sex. The woman’s offer to wear a skirt of modest length was rejected and she was discharged.

EEOC acknowledges that employers can have and enforce a dress code, but when it comes to dealing with employees who wear clothing for religious reasons or have special grooming requirements EEOC takes the position that exceptions to the policy may be required as an accommodation. Under Title VII of the Civil Rights Act of 1964, an employer is required to accommodate an employee’s religious belief unless doing so would create an “undue hardship.” According to the EEOC attorney, an undue hardship is “anything that would cause more than a de minims cost on the employer’s operation.”

Employers should be careful about arguing that absolute enforcement of a dress code policy is a business necessity. The EEOC will scrutinize an employer’s ban on religious clothing that the employer justifies based in its desire to convey a certain image to customers and the public. EEOC and the courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients. However, employers should tread cautiously. In one case, a court found that a county library discriminated on the basis of religion when it fired a librarian because she refused to remove a “cross necklace.” The court held that library patrons were unlikely to believe that the cross was part of the county’s message.

Employers should review their dress code policies to ensure they are not discriminatory and that they recognize the possibility of accommodating religious clothing, jewelry and tattoos. In addition, managers should be educated to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious article that may conflict with the dress code policy.

Article by Cheryl Orr on New Trends in Misclassification Cases Featured on InsideCounsel.com

Cheryl Orr’s article, “New Trends in Misclassification Cases,” is featured today on InsideCounsel.com. The article looks at where courts stand on employee misclassification, noting that in 2012 misclassification lawsuits burgeoned in new states, new industries and new areas of focus. To read the full article click here.

Illinois Becomes Second State to Prohibit Employers from Requiring Access to Employees’ and Prospective Employees’ Social Media Web Sites

On August 1, 2012, Illinois joined Maryland (law passed in March 2012) in prohibiting employer access to social media web sites of their employees and prospective employees. There are a number of other states that are also considering such prohibitory legislation (California, Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, South Carolina and Washington), as is the United States Congress. In April 2012, Representatives Eliot Engel and Jan Schakowsky introduced the Social Networking Online Protection Act (2012 H.R. 5050), and the Password Protection Act of 2012 (2012 S. 3074) was introduced in the Senate in May 2012, which prohibit employers from requiring access to their employees’ social media web sites. In July, Delaware passed a law prohibiting public and private academic institutions from requiring that a student or applicant disclose password or account information granting the academic institution access to the student’s or applicant’s social networking profile or account. A companion bill dealing with employers is still being considered by the Delaware legislature.

The new Illinois law amends Section 10 of the Right to Privacy in the Workplace Act. It prohibits an employer from requesting or requiring any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website. This Act goes into effect January 1, 2013.

The Illinois law defines “social networking website” as an Internet-based service that allows individuals to construct a public or semi-public profile within a bounded system, created by the service; or to create a list of other users with whom they share a connection within the system; or to view and navigate the employee’s or prospective employee’s list of connections and those made by others within the system. It does not include electronic mail.

The new Illinois law is not intended to nor does it prohibit an employer from obtaining information about a prospective employee or an employee’s information that is in the public domain or that is otherwise obtained in compliance with the new law.

Under the new Illinois law, an employee may file a complaint with the Director of Labor or, failing timely resolution, may bring a civil action for injunctive relief and to recover actual damages plus costs. For a willful and knowing violation of this Act, the employee may recover $200 plus costs, reasonable attorney’s fees, and actual damages. Any employer or prospective employer or his agent who violates the provisions of this Act is guilty of a petty offense and subject to a $1,000 fine. The new law also prohibits retaliation for opposing employer’s conduct reasonably believed to violate the new law.

Employers are advised to ensure compliance with these laws in both Illinois and Maryland and to keep their eyes on the other states.