The Clerk for the U.S. District Court for the Eastern District of Pennsylvania recently ruled that there is a heavy presumption that prevailing parties may recover certain e-discovery costs under 28 U.S.C. § 1920. Federal Rule of Civil Procedure 54(d)(1) allows prevailing parties to submit bills of costs for certain expenses, enumerated in 28 U.S.C. § 1920, for taxation by the Clerk against the non-prevailing parties. For example, that statute provides for the taxation of costs related to obtaining copies of transcripts and printing. More significantly, the statute provides for the taxation of “[f]ees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). While the term “exemplification” is undefined, federal district clerks have traditionally awarded, as exemplification and copying costs, those costs related to the production of paper documents, photographs, models, maps, blow-ups, charts, and diagrams.

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In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the “paramount ideal” of pursuing truth favors liberal discovery of relevant information on social media sites.

In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff’s objections to providing non-public portions of plaintiff’s Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff’s claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.

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Just as lawyers now routinely conduct due diligence on opposing parties’ social media pages. some lawyers also are monitoring postings by jurors on social media sites.

In a recent ethics opinion issued by the New York County Lawyers’ Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors’ postings on publicly available social networking sites during trial. But they must not “friend” or “tweet” jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.

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Well, this result seemed almost inevitable.  After all, who gets away with misleading a court?  Right?  But is the amount of the sanction sufficient?  Righthaven was ordered to pay a measly $5,000.  Is that amount really going to punish Righthaven in any significant way?

Righthaven LLC is a copyright holding company, founded in March 2010, which acquires the rights to newspaper content from its partner newspapers (most notably, Stephens Media, which owns the Las Vegas Review Journal). Upon finding that content has been copied to online sites without permission, Righthaven initiates litigation against the site owners, alleging copyright infringement.
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