In
a pair of decisions, the Bankruptcy Court for the Western District of Texas
took on two big issues arising in a dischargeability case concerning
allegations of sexual misconduct: whether defamation findings in state court
are binding in bankruptcy as well as whether messages in “private” Facebook
groups are discoverable. Joseph
Mazzara v. Donna Shute Provencher, Adv. No. 19-05026-cag (Bankr. W.D. Tex.
Dec. 4, 2020); Joseph Mazzara v. Donna Shute Provencher, Adv. No.
19-05026-cag (Bankr. W.D. Tex. Apr. 7, 2021). The opinions can be found here and here.
The decisions stem from a lawsuit filed by Joseph Mazzara against Donna Shute Provencher in Virginia State court. Mazzara alleged that Provencher posted on a Christendom College Alumni Facebook page where she accused him of sexual assault and of having been investigated for it while he was a student at Christendom College. Mazzara claimed that Provencher’s allegations were false and defamatory. Shortly before trial, Provencher filed for relief under Chapter 7 of the Bankruptcy Code and Mazzara, in turn, initiated an adversary proceeding against Provencher to determine the dischargeability of the debt.
Defamation Claims and Dischargeability
The bankruptcy court granted a motion to lift the automatic stay filed by Mazzara and held that the defamation claim needed to be litigated in state court. In the state court proceedings, Provencher stipulated to liability and agreed to entry of judgment in favor of Mazzara for $25,000 plus interest and costs.
The bankruptcy court then considered Mazzara’s arguments that the judgment entered against Provencher in state court could be nondischargeable under Section 523(a)(6) of the Bankruptcy Code due to the applicability of res judicata or judicial estoppel. Section 523(a)(6) provides that willful and malicious injury by a debtor to another entity or to the property of another entity is nondischargeable.
The Court’s first decision focused on res judicata (claim preclusion and issue preclusion). The Court found against Mazzara on the issue of claim preclusion but found for him on the issue of collateral estoppel (or issue preclusion). Essentially, because Virginia rejects the majority view that default judgments cannot be used for collateral estoppel purposes, the Court found that the issue of defamation was actually litigated, and collateral estoppel applied. It reasoned that Provencher had hired an attorney, made appearances, filed motions, stipulated to liability, and did not appeal the judgment when finding the matter was actually litigated.
The Court also concluded that the dollar amount of the debt was subject to res judicata. However, the Court ruled that it would need to hear further evidence on whether Provencher’s intent was willful and malicious under Section 523(a)(6) because this was not an element of defamation in Virginia, and was therefore not litigated in the state court proceedings.
Discovery of “Private” Facebook messages
In a subsequent discovery dispute in the adversary proceeding, the Court considered whether certain documents requested by Mazzara were required to be produced. Provencher claimed that the documents were conversations she had in a private Facebook group, “Christendom Survivors: The Order of the Phoenix” after Mazzara had threatened to sue.
Provencher asserted that the restricted interest chatroom was for survivors of sexual assault and their supporters, that they engaged in “supportive venting,” and that they discussed rumors concerning parties unrelated to the litigation. She also claimed that the Facebook group could not be found via search and a third party cannot be a participant in the group without permission from the group members.
Provencher argued that disclosure of the conversations would violate the Facebook group members’ reasonable expectation of privacy under the U.S. Constitution. Provencher relied, in part, on a criminal holding that the government did not violate the Fourth Amendment when a cooperating witness gave the government access to a defendant’s Facebook profile. Provencher claimed there was no such waiver in her case.
The Court found this argument unpersuasive and refused to extend Fourth Amendment protections to limit discovery in civil cases that do not involve government actors. It also noted that there is a general consensus that social networking content is discoverable so long as the requests are not overly broad, unduly burdensome, irrelevant, or disproportionate.
Finally, the Court held that the documents were relevant because they could reasonably serve as evidence to determine the only remaining issue in the adversary proceeding – whether Provencher’s intent was willful or malicious when she had posted about Mazzara on the Christendom College Alumni Facebook page.
Practice Points
The pair of decisions illustrate several practice points. It is important to be mindful of state law standards that intersect with adversary proceedings. Here, Virginia’s departure from the majority view on default judgments for collateral estoppel purposes played a major role in the Court’s findings. The particular elements of defamation in Virginia also meant that the Court had to hear additional evidence to determine dischargeability even after accepting the state court’s findings. This may be especially important when a bankruptcy case is in a different state than the state court proceedings which was the case here.
This adversary proceeding also illustrates that many communications which we may intuitively think of as private are indeed discoverable. As the Court noted, the Federal Rules of Civil Procedure permit broad discovery with little differentiation between public and private content so long at is relevant and not privileged. A prudent attorney will warn her clients not to comment on ongoing litigation in any form of social media since even “private” discussions could be discoverable.
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