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The Quarterly Dose

“IYKYK” – Keeping Up to Date with Social Media

The Quarterly Dose – May 2025

May 1, 2025

by Patricia A. Lafferty and Nicole E. Tanana

If you know, you know! Social media has become ubiquitous and continues to evolve into myriad platforms. As the chaos surrounding a threatened shutdown and brief outage of TikTok illustrated in January 2025, most people believe that they cannot and simply do not want to live without it. Since Facebook was founded in 1996, social media has reached over half the world’s population. In 2010, there were 970 million active social media users globally. That number has ballooned to 5.24 billion users in January of 2025. In the United States, 70.1% of the total population actively use social media. Amazingly, Americans spend an average of 2 hours and 9 minutes on social media every day. With these staggering numbers in mind, it would be naïve to think that social media does not play a role in litigation and the discovery process. 

Ethical and Technological Considerations 
When it comes to social media users, research has shown that there are stark differences in not only the generational usage of the various types of social media, but gender differences as well. It should be no surprise that age has an effect on usage. According to DataReportal, a website that provides global digital insights and trends, recent usage numbers show that everyone is embracing social media and all that it has to offer, with 84% of 18- to 29-year-olds and 45% of those aged 65 and older using social media.

Additional research demonstrates that in the United States, females are more prevalent and account for 78% of social media users, whereas 66% of men use social media. Women were noted to use platforms such as Snapchat and Pinterest, and men tend to favor sites like YouTube and X(Twitter). According to a recent article by Exploding Topics, YouTube is the world’s most popular and widely used social media platform, followed by Facebook, Instagram, WeChat, Reddit, Messenger, TikTok, Telegram and Viber.

These statistics can be a useful guide in directing you to where your target audience is spending their “down” time, leading to more pointed additional discovery requests. Due to the vast amount of information and data being generated by each user, it is important to cater your discovery requests to get as much information without going down the rabbit hole of what could be mountains of documentation and paperwork. Keeping up to date on the research related to ever-changing social media trends and the various demographics can help to narrowly tailor your discovery requests and yield pertinent information to defend your case.

It is important to keep in mind that the Rules of Professional Conduct require attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (Pa. R.P.C. 1.1.). The obligation also exists for lawyers to ensure that preservation of such discoverable materials is maintained at the risk of spoliation issues arising. In 2014, the Pennsylvania Bar Association adopted the view of the Philadelphia Bar Association Professional Guidance Committee that a lawyer may advise a client to change the privacy settings on the client’s Facebook page, however, a lawyer “may not instruct or permit the client to delete/destroy a relevant photo, link, text, or other content, so that it no longer exists.” (Pa. Bar Ass’n Formal Op. 2014-300 [Sept. 2014]). The same principles still apply today, and lawyers are required to take affirmative steps to preserve social networking evidence and advise client(s) of the same. 

Since social media discovery has to be maintained by the party, considerations can and should be given for an individual to preserve their own account. Many social media sites are now on the second and third generation of these platforms, and technological advances have allowed access to more features that may not have been feasible at their inception. For example, many platforms now allow individual users to download their entire account in just a few steps. Social media powerhouses such as Facebook, Instagram and TikTok all offer this feature. This process can be accomplished, in some circumstances, in a few “clicks” and arguably alleviates the “overly burdensome” obstacle of Pennsylvania Rule of Civil Procedure 4011. 

What the Courts Have to Say 
Under the general discovery principals in Pennsylvania, information contained on a litigant’s social media platforms is generally discoverable. In Pennsylvania, “…a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it related to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” (Pa.R.C.P. 4003.1.) Pennsylvania Rule of Civil Procedure 4009.1 explicitly permits the discovery of electronically stored information. This broad general principle of what is discoverable is limited by Pennsylvania Rule of Civil Procedure No. 4011, which states: “No discovery, including discovery of electronically stored information, shall be permitted which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; … or (e) would require the making of an unreasonable investigation by the deponent or any party or witness.” 

Despite the popularity and extensive use of social media platforms, Pennsylvania Appellate Courts have not yet addressed the parameters of what is discoverable, and appellate review is scant. The trial courts, however, have seen their fair share of attempts to widen and/or limit the net of discoverable data. The court’s interpretations have been varied when it comes to how far litigants can go when delving into the world of social media discovery.

Most courts have treated social media information as they would any other information sought in discovery. In Brogan v. Rosenn, Jenkins & Greenwald, LLP, the court stated: 

Consistent with that firmly established discovery maxim, a party may obtain discovery of private Facebook posts, photographs and communications only if the electronically stored information is relevant, and the party must satisfy that relevancy requirement by showing that publically accessible information posted on the user’s Facebook page controverts or challenges the user’s claims or defenses in the pending litigation. To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle. 

(C.C.P. Lackawanna April 22, 2013) (Nealon, J.).

Moreover, in at least in one case, the court held that it was not necessary for a party to have a public profile before the opposing party is given access to the private portion of a party’s social media profile. In Arcq v. Fields, No. 11-4637 (C.C.P. Franklin Dec. 7, 2011) (Herman, J.), the defendants’ Motion to Compel information about the plaintiff’s social networking sites was denied due to the defendants’ failure to show any reasonable basis for believing access to the plaintiff’s profiles would yield any relevant information. Despite the denial of the motion, the court took a broad view of what the defendants had to show prior to being given access to the plaintiff’s private profile, stating: “[w]hile it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that defendant have some good faith belief that the private profile may contain information.” Arcq v. Fields, No. 11-4637 (C.C.P. Franklin Dec. 7, 2011) (Herman, J.). 

Privacy Settings
Privacy considerations are typically the main argument against disclosure of a litigant’s “private” social media information as based on the individual’s privacy rights. While the privacy argument has been rejected by Pennsylvania trial courts in some circumstances, most litigants will continue to push back when discovery seeks specific information that is contained on a litigant’s “private” social media platforms. 

When discovery seeks information contained within a litigant’s private social media platforms, Pennsylvania trial level courts have implemented a balancing test that balances the need for relevant “private” social media information and the parties’ privacy concerns. In Hunter v. PRRC, Inc., 2013 WL 9917150 (York C. C. P. Nov. 4, 2013) (Linebaugh, J.), the court determined that a party making the request for social media information must make: 

[A] threshold showing that otherwise available information leads to the reasonable probability that relevant information is contained with the private portions of the account. The hypothetical possibility that relevant information may exist in any account held privately is not sufficient to meet this showing. Actual facts must be shown… 

A “threshold showing” is the standard for Pennsylvania Courts in deciding whether private social media information should be disclosed in discovery; however, the analysis does not end at this showing. In Trail v. Lesko, 2012 WL 2864004 (Allegheny C. C. P. July 3, 2012) (Wettick, J.), the court analyzed the approaches taken by nine earlier Pennsylvania trial courts and recognized that discovery of private social media information is inherently intrusive and, relying on Pa.R.C.P. No. 4011, noted a court should consider the “level of the intrusion and the potential value of the discovery to the party seeking discovery.” Most recently in Allen v. Sands Bethworks Gaming, LLC, 2018 WL 4278941 (Northampton C. C. P. Aug 6, 2018) (Dally, J.), the court found that in order to obtain the private portions of a litigant’s social media information, the requesting party must show discrepancies between the public portions of the litigant’s social media platforms and what the litigant is claiming in the lawsuit. These considerations, as to whether your case will cross the threshold, should be considered in any motion to compel.

It is evident that social media discovery exploration is a necessary component to ensure that you are properly defending your clients. Preparing discovery that is geared toward the opposing party’s use of various social media platforms helps to maintain the most effective use of your and your client’s time. Understanding the court’s parameters of what is permissible and whether your case will meet the privacy threshold will help you successfully navigate the inevitable discovery disputes.  

 

The Quarterly Dose – May 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Thought Leadership

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association