It’s been a while (since mid-2020) since we last updated our cheat sheet devoted to ediscovery for defendants. That’s because, unlike most of our other cheat sheets and scorecards, cases involving defense discovery of plaintiffs’ social media can be found in a wide variety of non-drug/device contexts – other personal injury, employment, civil rights, anything where a plaintiff’s personal conduct could be relevant. That means our various automatic Westlaw/Lexis searches that turn up drug- and medical device-related decisions aren’t enough. We have to research social media discovery cases specifically to update our collection of case.
That means extra work for us, and recently we’ve been busy with other things. But we got our act together, and we present in this post (as well as added to the cheat sheet itself) our latest additions. Since this is a cheat sheet all of the decisions that follow are both: (1) on point, and (2) favorable to our side of the “v.” This means that the new decisions below either allow access to some plaintiff’s social media activity or imposes sanctions (such as spoliation) on plaintiffs who improperly fail to provide social media discovery.
Here is our usual caution about defense-side social media ediscovery. We continue to believe that it’s not a good idea for a defendant to imitate what plaintiffs do routinely – that is, to make a broad request for everything social-media-related at the beginning of the case – instead send a preservation letter, or even better get a court preservation order. Courts don’t tend to give defendants the same latitude as plaintiffs to make wide-ranging discovery demands, and the likely result is “no, that’s a fishing expedition.” A defendant is much more likely to succeed with a blanket social media discovery demand once it has caught the plaintiff in some kind of chicanery – such as particular public social media content contradicting either their own discovery responses or some open-court representation − or when found to be deleting or otherwise hiding social media activity. Take the initiative and investigate. Engage in some self-help (but don’t mislead anyone). Once a plaintiff is caught, broader social media discovery follows more easily.
Thus, without hard evidence of the other side’s concealment, starting small, with less intrusive social media discovery is more likely to succeed. If there’s potentially a lot out there, engage an ediscovery specialist and perhaps propose sampling – 5% or 10% of the entire universe of posts – as something less intrusive, but statistically likely to find uncover useful information. An active social media user (the kind most likely to generate useful information) usually has thousands of potentially discoverable items.
With these caveats, here are the latest favorable decisions allowing defendants to conduct ediscovery of plaintiff social media:
- Lieberman v. Unum Group, 2021 WL 4807643 (C.D. Cal. Oct. 14, 2021). Plaintiff’s social media posts are relevant because they may contain objective and contemporaneous examples of plaintiff’s activities and functionality. Undue burden and overbreadth objections overruled. Plaintiff must provide a sample of social media activity over a three year period of defendant’s choosing.
- Rosales v. Crawford & Co., 2021 WL 4429468 (E.D. Cal. Sept. 27, 2021). Plaintiff compelled to produce social media content. Social media is neither privileged nor protected by any right of privacy. Social media is relevant to claims of emotional distress.
- Collins v. ControlWorx, LLC, 2021 WL 4429456 (M.D. La. Sept. 27, 2021). Discovery propounded to plaintiff seeking all electronically stored information and social media posts, tweets, or replies, regarding the facts and circumstances that are the subject of the allegations in the complaint are relevant and proportional, and plaintiff is compelled to respond.
- Krishnan v. Cambia Health Solutions, Inc., 2021 WL 3129940 (W.D. Wash. July 23, 2021). Plaintiff sanctioned for belatedly disclosing a second cell phone used to send social media messages, shortly before the close of discovery. The delay and concealment calls into question plaintiff’s good faith in complying with discovery. A forensic examination of the phone, at plaintiff’s expense, is ordered.
- Hinrichs v. Allstate Insurance Co., 2021 WL 3053208 (W.D. Wash. July 20, 2021). Plaintiff ordered to produce social media, texts, emails, photos, and videos concerning the accident, lawsuit, physical, mental and emotional injuries, trips, hobbies, social and leisure activities, quality of life, and communications with potential witnesses. Defendant’s review of plaintiff’s social media demonstrates that, contrary to plaintiff’s representation, there are many responsive items. Plaintiff placed her lifestyle and activities prior to the accident directly at issue. Since defendant will hire an ediscovery vendor, at no cost to plaintiff, she cannot claim burdensomeness.
- Doe v. Purdue University, 2021 WL 2767405 (N.D. Ind. July 2, 2021). Plaintiff sanctioned for spoliating social media information he was under court order to produce. Plaintiff does not get to decide what is relevant. A social media post need not directly reference or discuss a lawsuit for it to be relevant. Social media content that may reveal information relevant to damages is discoverable. Plaintiff took no steps to ensure preservation of data he knew was subject to deletion. Plaintiff must pay fees and the defendant may argue spoliation to the jury.
- Allen v. PPE Casino Resorts Maryland, LLC, ___ F. Supp.3d ___, 2021 WL 2434404 (D. Md. June 14, 2021). Discovery of social media is simply applying general discovery principles to a novel context. Social media content, even designated “non-public,” is neither privileged nor protected by any right of privacy. No threshold evidentiary showing of relevance is required to obtain discovery of non-public social media. Plaintiffs alleging emotional distress must produce social media concerning specific references to serious, non-transient emotional distress including any such distress they claim to have suffered, including references (postings, photographs and communications) to diagnosable conditions, visits to professionals for treatment of such distress, treatment regimens, and conversations regarding same. Production shall be by download through the social media providers.
- Sanchez v. Albertson’s LLC, 2021 WL 3572679 (D. Nev. June 9, 2021). Broad, albeit, not unfettered discovery is available into plaintiff’s social media, particularly in personal injury case. Plaintiff ordered produce complete copies of all his Facebook accounts. Plaintiff shall also produce a log of anything redacted. Plaintiff’s prior responses have been evasive.
- Matter of the Complaint of Paradise Family, LLC, 2021 WL 2186459 (M.D. Fla. May 28, 2021). Plaintiff ordered to produce social media accounts. Social media subject to same discovery as any other source and is neither privileged nor protected by any right of privacy. Request is relevant and proportional because plaintiff alleged damages for loss of the capacity to enjoy life and social media can provide information about plaintiff’s quality of life before and after the accident.
- Torgersen v. Siemens Building Technology, Inc., 2021 WL 2072151 (N.D. Ill. May 24, 2021). Plaintiff sanctioned with a mandatory adverse inference for spoliating evidence by deleting his Facebook page during litigation despite his counsel telling him not to. No privacy right exists in social media. Plaintiff had a duty to preserve this information in anticipation of litigation even before it was sought by defendants. The Facebook page, which demonstrated recreational activities, golf trips, and other physical activities, would tend to show that plaintiff had not lost a normal life, contrary to his claims. Since the information is not recoverable, the jury will be instructed that the plaintiff intentionally deleted the account to prevent discovery.
- Boegh v. Harless, 2021 WL 1923365 (Mag. W.D. Ky. May 13, 2021). Social media is relevant and discoverable, and not privileged nor private. Plaintiff has commented on the case and identified both evidence and witnesses on social media. That defendant could obtain some of plaintiff’s social media himself, does not absolve plaintiff from providing it. The extent of plaintiff’s failure to comply creates a strong inference that plaintiff is hiding private content.
- Manning v. Safelite Fulfillment, Inc., 2021 WL 3557582 (Mag. D.N.J. April 29, 2021), adopted, 2021 WL 3542808 (D.N.J. Aug. 11, 2021). Plaintiff sanctioned for spoliation of emails and Facebook messages. Plaintiff failed to disclose deletions during discovery. Plaintiff took no affirmative measures to preserve this material despite having a duty to do so. The Facebook messages are irretrievably lost. Defendants can present plaintiff’s destruction of evidence to the jury.
- Lukis v. Whitepages, Inc., ___ F. Supp.3d ___, 2021 WL 1600194 (N.D. Ill. April 23, 2021). Plaintiff cannot pick and choose which social media to produce. Plaintiff must produce the same kind of data from other social media that has already been produced from other accounts.
- Edwards v. Junior State of America Foundation, 2021 WL 1600282 (E.D. Tex. April 23, 2021). Plaintiff sanctioned with exclusion of evidence for deleting his Facebook account and thereby destroying the defendant’s ability to determine whether certain purported screenshots were authentic. Everything about the emails in the screenshots is excluded.
- Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D. Ga. March 16, 2021). Plaintiff deactivated one Facebook account and lied about having several others, that defendant independently discovered, after the accident at suit. Plaintiff compelled to produce account data for all Facebook accounts. Other sanctions, including spoliation, may be imposed if plaintiff actually destroyed, rather than withheld, information.
- Watkins v. Session, 2021 WL 663759 (S.D. Fla. Feb. 18, 2021). Plaintiff must provide five years of social media discovery. Plaintiff’s online history is relevant since his social media posts may well bolster his claims that the defendant’s actions harmed his employability and caused him emotional distress.
- Yang v. Lin, 2021 WL 423805 (D.N.J. Feb. 7, 2021). Plaintiff ordered to re-produce social media posts after she made her first production in a way that produced incoherent information. Plaintiff cannot produce documents as “kept in the usual course of business” where social media sites, not plaintiff, store the information. Production must include social media that plaintiff has removed from public view, as well as certain private information relevant to the litigation.
- Holloway v. County of Orange, 2021 WL 454239 (C.D. Cal. Jan. 20, 2021). Plaintiff sanctioned with adverse influence for deletion of Facebook account after discovery was sought. Under an obligation to preserve, plaintiff deleted the account with a culpable state of mind, and the account was relevant to defendants’ claims.
- Bruno v. Peak Resorts, Inc., 138 N.Y.S.3d 744 (N.Y.A.D. Jan. 14, 2021). An adverse inference was a proper sanction for plaintiff’s spoliation of social media evidence. Plaintiff deleted a relevant Facebook post and then lied about it. Plaintiff also belatedly produced other social media he had denied having. Plaintiff had retained counsel at the time of the deletion and thus knew litigation was likely. The deleted post went directly to the defendant’s defense.
- Pepin v. Wisconsin Central Ltd., 2020 WL 12432395 (W.D. Mich. Dec. 22, 2020). Plaintiff ordered to produce nearly five years of “[a]ny and all social media posts which show plaintiff participating in recreational activities, hobbies, vacations, family outings, and parties.” Since plaintiff changed certain media from public to private, no distinction is drawn between public and private posts.
- Abedin v. Palominos Osorio, 136 N.Y.S.3d 92 (N.Y.A.D. Nov. 12, 2020). Social media accounts relevant to plaintiff’s claim of emotional distress. Plaintiff must provide authorizations to obtain records of social media accounts.
- Adkisson v. Jacobs Engineering Group, Inc., 2020 WL 6549386 (E.D. Tenn. Nov. 6, 2020). Plaintiffs could not quash third-party subpoena. Defendants entitled to discovery of private Facebook group that discusses plaintiffs, their claims, and their medical conditions. There is no privacy right or privilege implicated.
- Milke v. City of Phoenix, 497 F. Supp.3d 442 (D. Ariz. Oct. 30, 2020). Plaintiff’s deliberate deletion of information from social media accounts was spoliation requiring dismissal of the case with prejudice. Plaintiff and her attorneys exercised control over the social media sites and on numerous occasions instructed that materials be deleted. Those instructions were given after the present litigation became reasonably foreseeable.
- Safer v. Hudson Hotel, 134 N.Y.S.3d 161 (N.Y. Civ. Oct. 20, 2020). Plaintiff sanctioned with adverse inference for spoliating relevant social media posts. Plaintiff was grossly negligent in not preventing third parties from deleting posts in her account and in deleting certain photographs herself during the course of an ongoing discovery apart. Posts deleted due to plaintiff’s negligence are presumed relevant. Photos could show that plaintiff was engaging in activities inconsistent with her claimed injuries.
- Edwards v. Junior State of America Foundation, 2020 WL 10317773 (E.D. Tex. Oct. 13, 2020). Plaintiff is sanctioned for failure to produce native format originals of purported emails, photocopies of which were central to his case. Authentication is necessary since private emails are at issue. Plaintiff’s failure to produce is sanctioned by an award of costs. Reconsideration denied, 2021 WL 2793850 (E.D. Tex. Jan. 21, 2021).
- Maurice v. Allstate Insurance Co., 2020 WL 4339256 (W.D. Wash. July 28, 2020). Plaintiff’s emails, texts, photos, videos and social media is discoverable. Plaintiff’s claim to have searched for this material is unexplained and thus cannot be credited. Plaintiff is ordered to grant access to her devices and online accounts to an ediscovery vendor hired and paid by defendant.
- Berg v. M & F Western Products, Inc., 2020 WL 6750176 (E.D. Tex. July 23, 2020). In light of plaintiff’s discovery defaults, plaintiff ordered to search all data on social media platforms in its custody and to produce all relevant, nonprivileged documents and materials thereby identified.
- Pendelton v. First Transit, Inc., 2020 WL 10787493 (E.D. Pa. July 10, 2020). Social media and locational data is public by nature and may not be redacted during production. For other electronic records, plaintiff must provide a log describing each redaction and must file a complete unredacted set of records, under seal, with the court.