Mazzara v. Provencher Illustrates Dischargeability in the Era of Social Media

In a pair of decisions, the U.S. Bankruptcy Court for the Western District of Texas took on two fundamental issues arising in an adversary proceeding for nondischargeability concerning a judgment for defamation arising out of alleged sexual misconduct. In Joseph Mazzara v. Donna Shute Provencher,[1] the bankruptcy court grappled with the following issues: (1) whether defamation findings in state court are binding in bankruptcy; and (2) whether messages in “private” Facebook groups are discoverable.

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 while attending Christendom College. Mazzara claimed that Provencher’s allegations were false and defamatory. Provencher filed for chapter 7 relief shortly before trial, and Mazzara initiated an adversary proceeding to seek nondischargeability of the debt.

Defamation Claims and Dischargeability

Mazzara thereafter filed an adversary proceeding in Provencher’s bankruptcy, seeking nondischargeability of Provencher’s alleged liability for defamation. 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. Mazzara argued that the state court claim for liability on the debtor’s part should be held nondischargeable pursuant to § 523(a)(6). The bankruptcy court granted a motion to lift the automatic stay filed by Mazzara, holding that the defamation claim needed to be litigated in state court. The bankruptcy court held the adversary proceeding in abatement until conclusion of the state court litigation.

In the state court proceedings, in lieu of complying with document discovery and allowing the trier of fact to reach a determination on its own, Provencher stipulated to liability and agreed to entry of judgment in favor of Mazzara for $25,000 plus interest and costs.

In the adversary proceeding, Mazzara filed a motion for summary judgment on theories of res judicata and/or judicial estoppel following entry of the state court judgment. The first noteworthy opinion in the adversary proceeding on Mazzara’s motion found that issue preclusion did in fact prohibit relitigation of the defamation issue based on collateral estoppel. That same opinion denied a ruling in Mazzara’s favor as to res judicata on Provencher’s claim amount. Provencher argued against collateral estoppel, likening the state court judgment to a “default judgment,” claiming the issue was not “actually litigated” where she stipulated to liability. Particularly noteworthy is the fact that Virginia rejects the majority view that default judgments cannot be used for collateral estoppel purposes. In this case, the bankruptcy court found that the issue of defamation was, therefore, actually litigated, thus leading to an application of collateral estoppel. The bankruptcy court reasoned that Provencher hired an attorney, made appearances, filed motions, stipulated to liability and did not appeal the judgment. Taken all together, these actions required a finding that the issue of defamation was actually litigated, thereby allowing collateral estoppel to be applied.

The court also concluded that the dollar amount of the debt was subject to the doctrine of res judicata, but that it would need to hear further evidence on whether Provencher’s intent was willful and malicious under § 523(a)(6) so as to render the claim dischargeable. Because the element of “willful and malicious intent” is not an element of defamation under Virginia state law, the court concluded that this element was not yet litigated, prohibiting a preliminary application of res judicata.

Discovery of “Private” Facebook Messages

In the context of discovery disputes in the adversary proceeding on the § 523(a)(6) action, the court further 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 that 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 on April 7, 2021, refused to extend Fourth Amendment protections to limit discovery in a civil case not involving a government actor. In its decision on this issue, 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 for purposes of bringing the claim amount within the discharge exception under § 523(a)(6). The court noted the general consensus that social networking content is discoverable so long as the requests are not overly broad, unduly burdensome, irrelevant or disproportionate. The case remains pending, with Provencher compelled to produce discovery.

Practice Points

The bankruptcy court’s rulings in this adversary proceeding illustrate several practice points: It is important to be mindful of state law standards when state law causes of action give rise to monetary claims subject to nondischargeability in adversary proceedings. Here, Virginia’s departure from the majority view on default judgments for collateral estoppel purposes played a major role in the bankruptcy court’s findings. The elements of defamation under Virginia state law also required that the bankruptcy court allow the proceeding to continue to determine whether or not the claim for liability was dischargeable, despite accepting the state court’s findings on the issue. This intersection is especially important when the bankruptcy case is filed in a state different from where the state court proceeding originates.

Finally, this adversary proceeding also illustrates that many communications that attorneys intuitively think of as private are indeed discoverable. As the bankruptcy 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, as even “private” discussions can be discoverable.