We update most of our Scorecards and Cheat Sheets on a real-time basis, because we have a good handle on the new decisions as they arise. Some of them, however, are updated more sporadically, mostly because they involve issues that go beyond purely drug/device matters. Our cheat sheet listing favorable e-discovery decisions involving plaintiffs’ social media evidence is one of the latter. The reason is obvious. Successful defense motions for discovery into social media can arise in any type of action where a plaintiff’s social media postings are likely to be relevant to claimed personal injuries – physical or mental. They arise in employment cases and non-product-related negligence cases. These have to be sought out. They don’t (usually) just fall into our hands.
Well, we’ve just updated this cheat sheet systematically for the first time in about a year, and we’re pleased to report that more and more defendants are putting more and more plaintiffs on the spot about social media evidence that contradicts their claims – sometimes dramatically. We’re also pleased to report that the latest bunch of cases included several the involve sanctions. We never had any doubt that plaintiff-side ediscovery would lead to conduct that far exceeds the kind of gotcha games that plaintiffs pull on defendants in similar situations, and readers will find several such cases in the latest update.
Finally, while we don’t post bad cases on cheat sheets, we have to admonish those on our side not to make bad law. With respect to ediscovery that means, quite simply, don’t embark on pure fishing expeditions. The law is becoming more and more clear that social media is discoverable to the same extent as any other evidence. That doesn’t justify shots in the dark, any more than it ever did with diaries, medical records, or any other type of sensitive evidence. For our side to win, don’t pursue motions to compel without articulable grounds for social media probably, rather than just might, contain discoverable evidence. If we do that, we’ll prevail.
Below are just the new citations we’ve added today, for your litigating pleasure (you’ll find the whole kit and caboodle here):
- In re Air Crash Near Clarence Center, New York, on February 12, 2009, 2011 WL 6370189 (W.D.N.Y. Dec. 20, 2011). Where plaintiff’s domicile is an important contested issue, discovery will be allowed into all of plaintiff’s electronic communications for a five-year period prior to the accident, including social media, text messages, emails, and instant messages, relevant to the plaintiff’s domiciliary intentions.
- Glazer v. Fireman’s Fund Insurance Co., 2012 WL 1197167 (S.D.N.Y. April 5, 2012). Plaintiff must produce all her LivePerson social media accounts. Pursuant to the Stored Communication Act the court may direct plaintiff to consent to disclosure if she wants to maintain this suit. It makes more sense to require the plaintiff, rather than the online provider, make the production. Since plaintiff has deleted relevant information that can be restored if she opens a new account, plaintiff is directed to open a new account. Given the relevance of the excerpts provided to the court, all chats must be produced regardless of subject matter. All chats during the plaintiff’s employment by the defendant must be produced. If plaintiff claims any privilege, she must submit a privilege log.
- Loporcaro v. City of New York, 35 Misc.3d 1209(A), 950 N.Y.S.2d 723 (table), 2012 WL 1231021 (N.Y. Sup. April 9, 2012). Plaintiff posted information on Facebook contradicting his claims, entitling defendants to full discovery. A person creating a Facebook account may be found to have consented to the possibility that personal information might be shared with others, notwithstanding the privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public.
- Walter v. Walch, 2012 WL 6864400 (N.Y. Sup. July 2, 2012). Defendants made a sufficient showing of particularity to be entitled to discovery from plaintiffs’ private Facebook pages. Plaintiffs who place their physical and mental condition in controversy may not shield themselves from disclosure material which is necessary to the defense of the action. Plaintiffs must provide authorizations.
- Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D. Or. Aug. 29, 2012). Where plaintiff has alleged severe emotional distress, defendant is entitled, for the relevant period, to social media discovery of any direct or indirect communications with current and former employee of defendant; plaintiff’s social media communications that reveal, refer, or relate to any significant emotions or emotion-stirring events allegedly caused by defendant’s conduct. Defendant may challenge the production if it believes the production fails short.
- Cajamarca v. Regal Entertainment Group, 2012 WL 3782437 (E.D.N.Y. Aug. 31, 2012). Monetary sanctions are appropriate against plaintiff’s counsel for failing to advise plaintiff not to delete relevant information from her computers. The relevance of the deleted information, which was of a sexual nature, was patently clear.
- Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. Sept. 7, 2012). Social media is discoverable and not privileged, but must be particularized. A particularized request for communications with specified employees of the defendant will be granted. Vague requests will be denied.
- Howell v. Buckeye Ranch, Inc., 2012 WL 5265170 (S.D. Ohio Oct. 1, 2012). Social media information is discoverable to the same extent as traditional material. Defendants must make a particularized showing. Plaintiff is on notice that defendants are seeking social media information and may not delete it. Any deletions must be reported to the defendant, and plaintiff must endeavor to recover them.
- Bianco v. North Fork Bancorporation, Inc., 2012 WL 5199007 (N.Y. Sup. Oct. 10, 2012). Given the plaintiff’s broad claims about alleged adverse impact on his life style and loss of enjoyment of life, defendant is entitled to Facebook discovery from plaintiff through the intermediary of a special master to whom the contents of plaintiff’s account will be produced. The special master shall limit discovery to information that is calculated to lead to admissible evidence.
- In re White Tail Oilfield Services, L.L.C., 2012 WL 4857777 (E.D. La. Oct. 11, 2012). Given claimant’s affidavit that he did not know how to download his own Facebook information, defendant will be given plaintiff’s download information, defendant will execute the download, and plaintiff must forward all downloaded information to defendant.
- EEOC v. Original Honeybaked Ham Co., 2012 WL 5430974 (D. Colo. Nov. 7, 2012). Defendant in administrative class action is entitled to discovery from the plaintiff’s social media accounts. The fact that information resides in cyberspace does not change its discoverability. The claimants created these communications voluntarily. Because a review of one claimant’s social media reveals much relevant information, there is valid reason to order discovery as to the other claimants in the class, particularly since other claimants posted to that claimant’s account. All discovery will go through a special master to ensure that only discoverable information is ultimately produced to the other side. Plaintiffs must produce all cell phones capable of text messaging and all social media access information to the special master for the time period at issue. The cost of forensic evaluation of this electronic information will be shared jointly by defendant and plaintiffs.
- Reid v. Ingerman Smith LLP, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012). Social media is a source for relevant and discoverable information. There is no justifiable expectation of privacy in social media, even if limited to “friends.” Plaintiff can have no expectation that “friends” will keep her post private. Defendants have made a sufficient showing from plaintiff’s publicly available Facebook pages that private pages are likely to contain evidence relevant to her emotional distress claims. Posts about plaintiff’s social activities may be relevant to emotional distress allegations and also identify potential witnesses. Completely irrelevant posts need not be produced.
- Keller v. National Farmers Union Property & Casualty Co., 2013 WL 27731 (D. Mont. Jan. 2, 2013). Social media is not protected from discovery simply because it is marked “private.” It is both discoverable and potentially admissible. The requesting party must make some threshold showing of likely admissibility. A non-specific request for a fishing expedition into a plaintiff’s social media will not be allowed. Plaintiffs must list all social media to which they belong. Defendant can renew with a showing of likely relevance.
- German v. Micro Electronics, Inc., 2013 WL 143377 (S.D. Ohio Jan. 11, 2013). Plaintiff engaged in significant social media use regarding her physical condition. Plaintiff violated Rule 34 by failing to specify a production format for her social media production. Cutting and pasting is not a form in which the information was ordinarily maintained. The burden and expense to plaintiff does not outweigh production of the electronic information. Plaintiff is not entitled to cost shifting. Plaintiff is obligated by Rule 34 to undertake a review of her own online activity. An offer to allow supply log-in credentials and passwords is not a valid alternative to production. That proposal is rejected because it seeks to shift to the defendant the burden of sifting through plaintiff’s prolific on-line activities. In light of plaintiff’s deceptive representations about discovery, defendant is entitled to an award of fees and costs.
- Scipione v. Advance Stores Co., 2013 WL 646405 (M.D. Fla. Feb. 21, 2013). In slip and fall case, plaintiff is to produce all Facebook content since the accident that refers to the injury as well as recent Facebook photographs.
- In re Christus Health Southeast Texas, ___ S.W.3d ___, 2013 WL 1247680 (Tex. App. March 28, 2013). Mandamus demanding discovery of social media in personal injury suit denied. While the material was relevant and there is no expectation of privacy in social media, the request was unlimited in time and thus overbroad.