Motions for Facebook discovery denied

Judge refuses profile information in Pittsburgh accident case

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An Allegheny County judge has denied dueling requests from parties seeking to discover information from the Facebook profiles of two people involved in a fatal automobile collision.

Court of Common Pleas Senior Judge R. Stanton Wettick Jr. ruled that discovery into a person's profile, when that party is not "friends" with his or her opponent, is unreasonably intrusive under one of Pennsylvania's Rules of Civil Procedure, which bars discovery that causes "unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party."

However, Judge Wettick noted that most Facebook discovery would probably fall at a "level of 2" on a scale of 1 to 10 in terms of intrusiveness, because the party resisting the discovery has already made the information available to a number of his or her "friends."

Still, the relatively minimal intrusiveness was enough for the judge under the circumstances in Trail v. Lesko.

Judge Wettick said the requests for Facebook discovery have been frequently coming in over the past year, but added he usually decides on them from the bench.

With the July 3 opinion, the ruling brings the state's scorecard to 6-4 in favor of trial courts denying discovery motions.

No appellate court has decided on the Facebook discovery issue in Pennsylvania.

Judge Wettick also detailed opinions from other jurisdictions, which have in some cases enlisted a different standard than courts in this state.

The plaintiff in the matter at hand, Michael Trail, had previously argued that several Facebook postings by Timothy Lesko would prove Mr. Lesko was in fact the drunken driver who crashed into Mr. Trail's vehicle in 2009. Mr. Lesko had denied being the driver in previous court filings, but he has since admitted to his liability.

"Thus, none of the information which [Mr. Trail] seeks would be relevant to the only issue that remains in this case -- damages," Judge Wettick said.

According to the opinion, Mr. Lesko on the night of the accident had been coming from a "Gun Bash" at the Pittsburgh Elks Lodge No. 11 in September 2009. Mr. Lesko, of Munhall, was hospitalized after the crash, and had a blood-alcohol content of 0.22, nearly three times the legal limit to drive.

At first, and through the third day of his criminal trial earlier this year, Mr. Lesko denied being behind the wheel.

According to his attorney, Joseph A. Hudock Jr., Mr. Lesko told police it was another man who was driving, but police took DNA samples from that man and quickly exonerated him.

On the third day of Mr. Lesko's criminal trial, after incriminating testimony, he took a guilty plea.

That changed the course of the civil suit, wherein Mr. Trail attempted to gain complete access to Mr. Lesko's profile and sought the authorizations necessary to compel Facebook to provide content Mr. Trail claimed Mr. Lesko had deleted.

But that was no longer necessary, Judge Wettick said, after Mr. Lesko admitted his culpability.

With regard to the plaintiff's inquiry into his client's Facebook, Mr. Hudock said the court got it right.

The defense discovery motion in this case came from the Elks Lodge itself, according to Mr. Hudock. The Elks Lodge's attorney, James W. Young Jr. of Willman and Silvaggio in Pittsburgh, was not available for comment.

The accident claimed the life of Jessica Trail. Ms. Trail's boyfriend, who was also in the car at the time, committed suicide in the aftermath. The boyfriend's estate is listed in the case caption, along with Jessica Trail, her brother, Michael Trail, and the driver, Amanda Delval, who was also injured.

legalnews

Ben Present: bpresent@alm.com or 215-557-2315. To read more articles like this, visit www.thelegalintelligencer.com.


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