McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. of Common Pleas Sept. 9, 2010)

COURT OF COMMON PLEAS OF JEFFERSON COUNTY
PENNSYLVANIA
CIVIL DIVISION
BILL R. MCMILLEN, SR., :

Plaintiff, :
:
vs. :
: No. 113 – 2010 CD
HUMMINGBIRD SPEEDWAY, INC., a :
Pennsylvania Corporation; LOUIE :
CALTAGARONE; DAVE RESINGER; and :
JOSIE LEE WOLFE, :
Defendants. :
OPINION ON DEFENDANTS’ MOTION TO COMPEL DISCOVERY

Factual and Procedural History
The plaintiff, Bill R. McMillen, Sr., has filed suit in an attempt to recover
damages for injuries he allegedly sustained when Defendant Wolfe rear-ended him
during a cool down lap following a July 7, 2007 stock car race. McMillen alleged
substantial injuries, including possible permanent impairment, loss and impairment of
general health, strength, and vitality, and inability to enjoy certain pleasures of life.
As discovery progressed, Defendant Hummingbird asked in its second set of
interrogatories whether McMillen belonged to any social network computer sites and, if
so, that he provide the name of the site(s), his user name(s), his login name(s), and his
password(s). McMillen answered that he belonged to Facebook and MySpace but
maintained that his user names and login information were confidential and thus would
not be provided. Counsel for Hummingbird responded by letter, denying that McMillen
was entitled to claim confidentiality or privilege as recognized under the Pennsylvania
Rules of Evidence.
After reviewing the public portion of McMillen’s Facebook account and
discovering comments about his fishing trip and attendance at the Daytona 500 race in
Florida, Defendants Hummingbird, Caltagarone, and Resinger filed a Motion to Compel
Discovery. They asked the Court to compel the production of McMillen’s user names,
log-in names, and passwords, contending that those areas to which they did not have
access could contain further evidence pertinent to his damages claim. Specifically, they
wanted to be able “to determine whether or not plaintiff has made any other comments
which impeach and contradict his disability and damages claims.”
Defendants filed a brief in support of their Motion, and on July 13, 2010, the
parties appeared for oral arguments. The Court offered McMillen additional time to file a
written reply, but none was forthcoming.
Discussion
Under Pennsylvania’s broad discovery rules, as long as it is relevant to the
litigation, whether directly or peripherally, a party may obtain discovery regarding any
unprivileged matter. Pa.R.C.P. 4003.1. As a practical matter, that means that nearly any
relevant materials are discoverable, because this Commonwealth recognizes only a
limited number of privileges. See Bernstein, Pa. Rules of Evidence, Art. 5 (enumerating
and discussing Pennsylvania’s recognized privileges).
In this case, McMillen asks the Court to recognize communications shared among
one’s private friends on social network computer sites as confidential and thus protected
against disclosure. Because Rule 4003.1 only makes privileged materials non-
discoverable, he is essentially asking the Court to recognize a privilege for those
communications. He does not cite any binding or persuasive authority to support his
position, however, and indeed, no “social network site privilege” has been adopted by our
legislature or appellate courts. As a general matter, in fact, the law disapproves
privileges. See Joe v. Prison Health Serv., 782 A.2d 24, 31 (Pa. Commw. Ct. 2001)
(“Pennsylvania law does not favor evidentiary privileges”).
‘“Evidentiary privileges are not favored; . . . exceptions to the demand for every
man’s evidence are not lightly created nor expansively construed, for they are in
derogation of the search for the truth.’” Hutchison v. Luddy, 606 A.2d 905, 908-09 (Pa.
Super. 1992) (quoting Herbert v. Lando, 441 U.S. 153, 175 (1979)). Even in the arena of
testimony, where the evidence will be publicly divulged, the courts sanction the
application of privilege ‘“only to the very limited extent that [it] has a public good
transcending the normally predominant principle of utilizing all rational means for
ascertaining the truth.’” Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1027 (Pa.
Commw. Ct. 2006) (quoting Joe, 782 A.2d at 31)). The less public arena of discovery,
2
according to Peppard v. TAP Pharmaceutical Products, Inc., 904 A.2d 986 (Pa. Commw.
Ct. 2006), necessitates even greater latitude, for “the purpose of allowing a broader
standard is to ensure that a party has in its possession all relevant and admissible
evidence before the start of trial.” Id. at 994.
Because “evidentiary privileges are to be narrowly construed, Joyner v. S.E. Pa.
Transp. Auth., 736 A.2d 35, 38 (Pa. Commw. Ct. 1999), our courts have routinely
declined to extend the scope of existing privileges beyond their historical purpose and
application or the strictures of the statutory language creating them. See e.g. id. (attorney-
client privilege); Hutchison, supra, Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997)
(clergy-penitent privilege); Joe, supra (attorney-client, deliberative process, and Peer
Review Protection Act privileges); In re Subpoena No. 22, 709 A.2d 385 (Pa. Super.
1998), M. v. State Bd. of Med., 725 A.2d 1266 (Pa. Super. 1999) (psychologist-patient
privilege); Grimminger v. Maitra, 887 A.2d 276 (Pa. Super. 2005) (physician-patient
privilege). Additionally, a new privilege ought not be recognized unless the claimant can
establish four things: 1.) that his communications originated in the confidence that they
would not be disclosed; 2.) that the element of confidentiality is essential to fully and
satisfactorily maintain the relationship between the affected parties; 3.) community
agreement that the relationship must be sedulously fostered; and 4.) that the injury
potentially sustained to the relationship because of the disclosure of the communication
outweighs the benefit of correctly disposing of litigation. Matter of Adoption of Embick,
506 A.2d 455, 461 (Pa. Super. 1986) (citing 8 J. Wigmore, Evidence, § 2285
(McNaughton’s rev. Ed. 1961)). McMillen cannot satisfy those requirements.
Facebook, MySpace, and their ilk are social network computer sites people utilize
to connect with friends and meet new people. That is, in fact, their purpose, and they do
not bill themselves as anything else. Thus, while it is conceivable that a person could use
them as forums to divulge and seek advice on personal and private matters, it would be
unrealistic to expect that such disclosures would be considered confidential.
Both sites at issue here do guarantee a modicum of privacy insofar as users may,
with the exception of certain basic information, choose what information and posts to
make public and which ones to share with only those persons they have identified as
friends. Yet reading their terms and privacy policies should dispel any notion that
3
information one chooses to share, even if only with one friend, will not be disclosed to
anybody else.
Facebook, in section 3, Sharing information on Facebook, Other, of its Privacy
Policy, cautions users as follows:
Some of the content you share and the actions you take will show up on
your friends’ home pages and other pages they visit.
...
Even after you remove information from your profile or delete your
account, copies of that information may remain viewable elsewhere to the
extent it has been shared with others, it was otherwise distributed pursuant
to your privacy settings, or it was copied or stored by other users.
You understand that information might be reshared or copied by other
users.
...
When you post information on another user’s profile or comment on
another user’s post, that information will be subject to the other user’s
privacy settings.
Facebook, http://www.facebook.com/policy.php (revised 04/22/2010). Then under

section 6, How We Share Information, To respond to legal requests and prevent
harm, users are informed that Facebook’s operators may disclose information pursuant to
subpoenas, court orders, or other civil or criminal requests if they have a good faith belief
that the law requires them to respond. Id. They likewise reserve the right to share
information with companies, lawyers, courts, or other government entities “when we
have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent
imminent bodily harm, or to protect ourselves or you from people violating our Statement
of Rights and Responsibilities.” Id.
Facebook users are thus put on notice that regardless of their subjective intentions
when sharing information, their communications could nonetheless be disseminated by
the friends with whom they share it, or even by Facebook at its discretion. Implicit in
those disclaimers, moreover, is that whomever else a user may or may not share certain
information with, Facebook’s operators have access to every post.
Similarly, if one goes to MySpace’s Terms and reads section 2, Term, he will
find that the operators of that site may, at their election, reject, refuse to post, or remove
any posting, whether it be a private message, an email, or an instant message. MySpace,
http://www.myspace.com/index.cfm?fuseaction=misc (June 25, 2009). Section 7.1,
4
Content Posted, further states that “MySpace may reject, refuse to post or delete any
Content for any or no reason, including, but not limited to, Content that in the sole
judgment of MySpace violates this agreement or which may be offensive, illegal or
violate the rights of any person or entity, or harm or threaten the safety of any person or
entity.” Id. It then provides that MySpace may choose to monitor users’ content or
conduct, thereby explicating the fact of the operators’ unfettered access to a member’s
communications, and may, with his or her implied consent, scrutinize those
communications at any time and for any reason.
Without more, the complete access afforded to the Facebook and MySpace
operators defeats McMillen’s proposition that his communications are confidential. The
law does not even protect otherwise privileged communications made in the presence of
third parties. See e.g. In re Condemnation by City of Philadelphia, 981 A.2d 391, 397
(Pa. Commw. Ct. 2009) (“Confidentiality is key to the [attorney-client] privilege, and the
presence of a third-party during attorney-client communications will generally negate the
privilege”). When a user communicates through Facebook or MySpace, however, he or
she understands and tacitly submits to the possibility that a third-party recipient, i.e., one
or more site operators, will also be receiving his or her messages and may further disclose
them if the operator deems disclosure to be appropriate. That fact is wholly
incommensurate with a claim of confidentiality. Accordingly, McMillen cannot
successfully maintain that the element of confidentiality protects his Facebook and
MySpace accounts from discovery.
The Court reaches the same result upon considering Wigmore’s test for privilege.
Returning to the four factors identified in Matter of Adoption of Embick, it is clear
that no person choosing MySpace or Facebook as a communications forum could
reasonably expect that his communications would remain confidential, as both sites
clearly express the possibility of disclosure. Confidentiality is not essential to maintain
the relationships between and among social network users, either. The relationships to be
fostered through those media are basic friendships, not attorney-client, physician-patient,
or psychologist-patient types of relationships, and while one may expect that his or her
friend will hold certain information in confidence, the maintenance of one’s friendships
typically does not depend on confidentiality.
5
The Court cannot say, therefore, that the community seeks to sedulously foster
friendships by recognizing friend-to-friend communications as confidential or privileged.
No such privilege currently exists. Friendships nonetheless abound and flourish, because
whereas it is necessary to guarantee people that their attorneys, physicians, and
psychologists will not disseminate the substance of their discussions in order to
encourage the type and level of disclosure essential to those professional relationships,
history shows that the same guarantee is not necessary to encourage the development of
friendships.
Furthermore, whatever relational harm may be realized by social network
computer site users is undoubtedly outweighed by the benefit of correctly disposing of
litigation. As a general matter, a user knows that even if he attempts to communicate
privately, his posts may be shared with strangers as a result of his friends’ selected
privacy settings. The Court thus sees little or no detriment to allowing that other
strangers, i.e., litigants, may become privy to those communications through discovery.
The countervailing benefits, moreover, cannot be overstated. Take this case, for
instance. McMillen has alleged significant and substantial injuries, some of which he
claims may be permanent. Accessing only the public portion of his Facebook page,
however, the defendants have discovered posts they contend show that McMillen has
exaggerated his injuries. Certainly a lack of injury and inability is relevant to their
defense, and it is reasonable to assume that McMillen may have made additional
observations about his travels and activities in private posts not currently available to the
defendants. If they do exist, gaining access to them could help to prove either the truth or
falsity of McMillen’s alleged claims.
The same may be true in any number of cases. Millions of people join Facebook,
MySpace, and other social network sites, and as various news accounts have attested,
more than a few use those sites indiscreetly. See e.g., The Independent, Facebook can
ruin your life. And so can MySpace, Bebo . . ., http://www.independent.co.uk/life-
style/gadgets-and-tech/news/facebook-can-ruin-your-life-and-so-can-myspace-bebo-
780521.html (02/10/2008) (Discussing some of the potential social, career, and legal
ramifications of inappropriate social computer networking). When they do and their
indiscretions are pertinent to issues raised in a lawsuit in which they have been named,
6
the search for truth should prevail to bright to light relevant information that may not
otherwise have been known.
Where there is an indication that a person’s social network sites contain
information relevant to the prosecution or defense of a lawsuit, therefore, and given
Koken’s admonition that the courts should allow litigants to utilize “all rational means for
ascertaining the truth,” 911 A.2d at 1027, and the law’s general dispreference for the
allowance of privileges, access to those sites should be freely granted.
7
COURT OF COMMON PLEAS OF JEFFERSON COUNTY
PENNSYLVANIA
CIVIL DIVISION
BILL R. MCMILLEN, SR., :

Plaintiff, :
:
vs. :
: No. 113 – 2010 CD
HUMMINGBIRD SPEEDWAY, INC., a :
Pennsylvania Corporation; LOUIE :
CALTAGARONE; DAVE RESINGER; and :
JOSIE LEE WOLFE, :
Defendants. :
ORDER
AND NOW, this 9th day of September 2010, for the reasons articulated in the
foregoing Opinion, it is hereby Ordered and Decreed that the Motion to Compel
Discovery is GRANTED. Accordingly, the plaintiff shall provide his Facebook and
MySpace user names and passwords to counsel for Defendants Hummingbird Speedway,
Louie Caltagarone, and Dave Resinger within the next FIFTEEN (15) DAYS.
IT IS FURTHER ORDERED that the plaintiff shall not take steps to delete or
alter existing information and posts on his MySpace or Facebook account.
This Order shall afford the defendants’ attorneys read-only access to the
plaintiff’s accounts. The plaintiff’s user names and passwords shall not be divulged to
the defendants themselves unless and until further order of Court.
BY THE COURT,
_________________________________
Hon. John Henry Foradora, P.J.

McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. of Common Pleas Sept. 9, 2010)

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COURT OF COMMON PLEAS OF JEFFERSON COUNTY

BILL R. MCMILLEN, SR., :

OPINION ON DEFENDANTS’ MOTION TO COMPEL DISCOVERY

Facebook, http://www.facebook.com/policy.php (revised 04/22/2010). Then under

BILL R. MCMILLEN, SR., :

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