A recent Pennsylvania State Court order granting a defendant’s motion to compel the production of one of the plaintiff’s Facebook log-in credentials found that social media accounts–even if set to private–are fair game in discovery.

In Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011), a personal injury case, the plaintiffs alleged serious and permanent physical and mental injuries, pain and suffering resulting from a motorcycle-automobile accident.

During the deposition of one of the plaintiff’s, Jennifer Largent, the defendant learned that Ms. Largent had a Facebook profile and that she used it regularly. However, she declined to disclose any information about the account and plaintiffs’ counsel advised that it would not voluntarily turn over such information.

Months prior, Ms. Largent’s profile was public, meaning that anyone with an account could read or view her profile, posts and photographs, but she changed her privacy settings to private.

In support of its motion to compel, the defendant claimed that some of Ms. Largent’s posts that had been publicly accessible contradict plaintiffs’ claims and, specifically, that Ms. Largent posted several photographs that show her enjoying life with her family and a status update about going to the gym.

Plaintiff argued that the discovery sought by the defendant was irrelevant, that disclosure of her Facebook account access information would cause unreasonable embarrassment and annoyance, and that such disclosure may violate certain privacy laws.

The Court was not persuaded. As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.

After reviewing a small but growing body of relevant case law, the Court found that “it is clear that material on social networking sites is discoverable in a civil case.” Information posted to the social media site is shared with third parties and, thus, there is no reasonable expectation of privacy in such information. The plaintiffs failed to cite any privacy law applicable to individuals that would shield production. And that, because defendant would bear the cost of investigating plaintiff’s Facebook profile, “this is one of the least burdensome ways to conduct discovery.”

The ruling is well-reasoned and consistent with existing case law, suggesting that this issue is likely to be widely resolved in favor of disclosure.

As such, we believe plaintiffs’ counsel should make discussing their clients’ social media accounts a routine part of their intake procedures depending on their practice areas and that litigants should be aware that setting a Facebook page to “private” does not necessarily mean it will be out of bounds in Court.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.

A California federal judge denied JPMorgan’s motion to compel arbitration on an individual basis.  Two former JPMorgan employees filed a class action complaint alleging violations of state and federal labor laws on behalf of JPMorgan appraisers.  As part of their employment, plaintiffs entered into arbitration agreement providing that “Any and all disputes that involve or relate in any way to my employment (or termination of employment) with Washington Mutual shall be submitted to and resolved by final and binding arbitration.”  The agreements, however, did not contain express waivers of class, collective, or representative claims.

The issue before the court was whether the court or the arbitrator decides if plaintiffs can arbitrate on a class, collective, or representative basis.  U.S. District Judge Staton noted that neither side disputed that the claims were subject to arbitration.  The Court found “useful guidance” in the Supreme Court’s plurality opinion in Green Tree Financial Corp. v. Bazzle.  The Judge explained that the “only question, as in Bazzle, is the interpretative one of whether or not the agreements authorize Plaintiffs to pursue their claims on a class, collective, or representative basis.  That question concerns the procedural arbitration mechanisms available to Plaintiffs, and does not fall into the limited scope of this Court’s responsibilities in deciding a motion to compel arbitration.”

Although the Supreme Court has not yet ruled on whether it is up to the court or an arbitrator to decide whether class arbitration is permitted based on a review of an arbitration agreement, the Court found Bazzle to be persuasive and agreed with its determination that “whether certain arbitration agreements authorized class arbitration properly lay in the first instance with an arbitrator, not a court.”  Judge Staton supported her conclusion by pointing to the Third Circuit decision, Vilches v. The Travelers Companies, Inc., which relied on Bazzle and ruled that the availability of class proceedings was a question for the arbitrator.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.

A former Rite Aid store manager filed a complaint in the Southern District of New York alleging that Rite Aid failed to pay its store managers overtime in violation of the Fair Labor Standards Act (the “FLSA”) and the New York Labor Law (the “NYLL).  The plaintiff claimed that store managers had to work overtime to perform non-exempt tasks including duties of cashiers and stock handlers.  The plaintiff moved to certify a class of store managers under Rule 23 and Rite Aid moved to decertify the conditionally certified FLSA class.  U.S. District Judge J. Paul Oetken granted the motion for class certification of the state law claims, but only as to liability and not for damages.  The court also refused to decertify the FLSA collective action.

The parties disputed whether the members of the class satisfied the commonality and typicality requirements under Rule 23.  The court concluded that “(1) Plaintiff’s portrayal of SM [store managers] as automatons, who perform rote tasks as explicitly directed by RA [Rite Aid] is inaccurate; and (2) despite their obvious discretion, however most SMs perform a similar mix of duties, and at the relevant level of generality, exercise their discretion in similar ways, supporting a commonality finding.”  The court also noted that “the differences among SMs are marginal and expected, rather than hyper-individualized and unpredictable.”  The court, however, refused to certify the class for damages purposes explaining that “there is no showing from Plaintiffs that the relevant records for SMs even exist, let alone a sufficient explanation of an approach for calculating damages.”

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.