Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

Continue Reading A Healthy Reminder of Burden Shifting

Social Media iconsGone are the days of handwritten personal diaries and daily journal entries.  Internet-based social networking has replaced pen and paper.  Facebook reports that it had 901 million monthly active users worldwide as of March, 2012.  With the explosion of social networking in recent years, litigation counsel are becoming more savvy at using this technology to their advantage, and more an more courts are weighing in on the extent that a parties’ social media content is discoverable.  Case law addressing the discoverability of social media varies, and is developing as more and more courts are addressing this issue.  This post notes some of the more noteworthy decisions, followed by a discussion of a recent case handled by this firm and some advice on how to deal with this developing issue.

The large majority of courts addressing the issue will permit discovery of social media content upon a threshold showing that the information sought has some relevance to the underlying lawsuit:

  • Romano v. Steelcase, Inc., 907N.Y.S. 2d650 (2010)(permitting discovery of Facebook account where inconsistencies demonstrated with plaintiff’s claims versus the information contained in social media content);
  • McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (PA Commw. 2010) (social media content discoverable where its demonstrated that publically available portion revealed information showing plaintiff was exaggerating his injuries);
  • Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Commw. 2011) (permitting discovery where publically available social media content including photographs depicting plaintiff were inconsistent with plaintiff’s claims of injury.) The hyperlink to this opinion was originally posted on gtleblog.

Other courts have denied or limited discover of a party’s social media content where there was no showing that the information sought would reveal relevant evidence:

  • McCann v. Harleysville Ins. Co. of New York, 78 A.D. 3d 1524 (N.Y.App.Div. 2010) (denying access to Facebook information where defendant “failed to establish a factual predicate with respect to the relevancy of the evidence.”);
  • Tompkins v. Detroit Metropolitan Airport, 2012 WL 17930 (E.D. Mich. 2012) (rejecting defendant’s overly broad discovery requests, but allowing limited discovery of photographs depicting plaintiff taken after the accident giving rise to the litigation).

Conclusion 

Based on the above, it is clear that counsel is well advised to craft discovery reasonably tailored to discover relevant social media content.  This can be demonstrated by a recent case handled by this firm.  Plaintiff, a college student, brought a personal injury claim and asserting significant impact on her social and athletic activities.  Plaintiff’s publically available Facebook account revealed photographs and status updates which contradicted plaintiff’s allegations and sworn deposition testimony concerning the extent of her injuries and impact on her everyday life.   Defendant filed a motion to compel plaintiff’s private social media content limited to photographs depicting plaintiff since the date of her injuries and written content relevant to her level of activity and participation in athletics.  The case settled while the motion was pending, but it was clear that plaintiff’s social media content and the motion to compel clearly impacted the case.   Accordingly, counsel should not overlook social media a source of discoverable information, and parties should be aware that their posts may become available regardless of whether they can be considered private.