Pandora’s box

By | 6th December 2011

Lovers of Greek mythology will be familiar with the story of Pandora, whose curiosity ensured that she opened the box given to her by Zeus with instructions that she should on no account open it. When she did, evil escaped around the world and although she tried her best to get the lid back on, everything inside escaped except Hope.

Rest assured that references to Pandora’s box and Ancient Greece are not intended as a prelude to commentary on the dire state of the Greek and other Eurozone countries (and others like our own which are directly affected by the mess the over-confident Europhiles have made of the economy of the once prosperous Western world).

No, my purpose is to praise the ever colourful language of our American cousins sitting in their courtrooms around the USA, who, while dealing with a variety of cases which might just as well be heard in any court in this country, ever delight in a word or turn of phrase which while slightly out of the ordinary, serve when used by US Judges to underline the truths we should come to accept as the norm here in this jurisdiction.

I want to draw your attention to more decisions of the US courts on the issue of social media and spoliation, as they call it, or as we would more readily understand it, the deliberate withholding of material evidence.

Let’s deal first with the case of Mr Matt Murray. In a case in Charlottesville, Viriginia, Judge Edward Hogshire imposed sanctions amounting to $572000 on Mr Murray for hiding evidence and deliberately trying to deflect the blame for his failings to the court. The court order may be viewed here and all that needs to be said is that Mr Murray has left his law firm (and it appears they had no idea what he was doing or not doing) and indeed is believed to have left the law altogether.

Moving on to Pennsylvania’s Common Pleas Court and the judgment of Judge Richard J Walsh on the discoverability of information on Facebook in the case of Largent v Reed (as reported in Law Technology News on 23rd November, No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says):

“Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

This case is only the latest in a long line of cases which I have mentioned before (such as McMillen v Hummingbird Speedway Inc)  which make it clear that use of social media is increasingly becoming a potential minefield for litigants who think it is safe to post all kinds of personal information apparently believing that it is safe from view except to those to whom they choose to permit access.

But to describe Facebook as “an online lockbox of secrets” takes judicial language to new heights for which one can only be thankful to Judge Walsh.

There is one other point of interest in this case; the case report mentions the Stored Communications Act of 1986. As I understand it, the Act provides that the account owner must be approached for online details whereas the internet service provider is protected from suit. In Largent v Reed the Judge decided that the Act did not apply because the information being sought was from the Plaintiff/Claimant direct and was not in the form of a subpoena directed to Facebook (in which case I assume the SCA may have applied and the application for disclosure would have been rejected).

“Lockbox” or not, it is now surely crystal clear that you post information in social media at your peril. If you fall foul of this, and go into court to argue that such information is not disclosable, you can expect to be faced with a Pandora’s box from which all Hope has vanished. In such an eventuality, the likes of Judge Walsh might be moved to quote Dante’s famous inscription over the gateway to hell, “Abandon hope all ye who enter here.”

Photo:19th cent. engraving, Pandora’s Box, based on a painting by FS Church (Wikimedia Commons)