It’s been a while (since mid-2021) 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 cases.
That also 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 our latest additions (and we added to the cheat sheet itself). 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 each of the new cases below either allows access to some plaintiff’s social media activity or imposes sanctions (such as spoliation) on a plaintiff who improperly failed to comply with social media discovery. In particular, we recommend reviewing In re Tasigna (Nilotinib) Products Liability Litigation, 2023 WL 6064308 (Mag. M.D. Fla. Sept. 18, 2023), and Davis v. Disability Rights New Jersey, 291 A.3d 812 (N.J. Super. App. Div. March 16, 2023), which we think are the most significant decisions in this batch of cases. We have now compiled 240 cases from some 40 jurisdictions – all supporting defendants’ rights to take discovery of plaintiffs’ social media.
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 plaintiff’s own discovery requests or some open-court representation − or when a plaintiff is 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 some contradictory statements. 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:
- In re Tasigna (Nilotinib) Products Liability Litigation, 2023 WL 6064308 (Mag. M.D. Fla. Sept. 18, 2023). Production of bellwether plaintiffs’ social media ordered in MDL. Plaintiffs must use a tool such as “download your information” to produce everything that the tool pulls. Social media must be produced in full. Search terms are inadequate, given the often casual nature of social media. Plaintiffs’ devices must undergo a technical search process, not just a manual search.
- Jo-Cordova v. Allstate Fire & Casualty Insurance Co., 2023 WL 4052278 (W.D. Wash. June 16, 2023). Plaintiff ordered to identify all social media accounts used during the last five years.
- Delay v. Dollar Energy Fund, 2023 WL 3177961 (Mag. W.D. Pa. May 1, 2023). Plaintiff sanctioned for deliberately spoliating his social media and giving a pattern of contradictory statements and attempts to backtrack or dance around prior statements.
- Francis v. Eversole, 2023 WL 3034694 (W.D. Ark. April 21, 2023). Plaintiff ordered to provide defendant with a list of all social media on which his publicly available activity may be found. Plaintiff further ordered to provide defendants a list describing all social media activity not publicly accessible on the internet, specifying whether the material still exists, and describing anything that was deleted or is otherwise not available.
- Vander Pas v. Board of Regents, ___ F. Supp.3d ___, 2023 WL 2651334 (E.D. Wis. March 27, 2023), reconsideration denied, 2023 WL 4053132 (E.D. Wis. June 16, 2023). Plaintiff’s action dismissed with prejudice as a sanction for falsely denying the existence of social media activity, failure to produce social media discovery until caught in perjury, unilaterally limiting the scope of production, deleting relevant text messages and social media comments, and failing to investigate or to correct prior false statements. Much of the deleted social media activity is now unrecoverable. Counsel was derelict in not advising plaintiff to disable the autodelete function. Plaintiff’s answers to discovery were willfully false.
- American Spirit & Cheer Essentials, Inc. v. Varsity Brands, LLC, 2023 WL 3083610 (W.D. Tenn. March 21, 2023). Plaintiffs’ action dismissed with prejudice largely as a sanction for plaintiffs’ repeated failures to produce their social media activity, including ignoring of search terms, delegating searches to plaintiffs personally without counsel’s oversight, self-selection of what social media to produce, and waiting beyond the discovery deadline to make “document dumps.” Discovery-related assurances of compliance were made with reckless disregard.
- Davis v. Disability Rights New Jersey, 291 A.3d 812 (New Jersey Super. App. Div. March 16, 2023). Order requiring production of plaintiffs’ private social media posts, profiles, and comments affirmed. Private social media are the same as other relevant evidence. Discovery was properly limited in time and to posts concerning comments or images depicting plaintiff’s emotions, celebrations, vacations, employment, and health, all of which were at issue in the litigation. It is reasonable to expect social media activity to reflect a plaintiff’s emotional distress or mental injury. A protective order was entered. There is no expectation of privacy in private social media posts that justifies requiring good cause for discovery. No confidentiality commitment or legal authority prevents an approved private recipient from sharing another’s private posts. Persons who choose to post social media messages and photos necessarily assume the risk that intended recipients will share the information with others. The weight of social media evidence is for the fact finder to determine, and doubts about their accuracy do not affect their discoverability. A plaintiff’s avid use of social media does not bar to a defendant’s legitimate discovery as burdensome.
- Clark v. Abdallah, 2023 WL 2401695 (E.D. Mich. March 8, 2023). Plaintiff sanctioned with adverse inference for concealing social media use by failing to disclose two social media accounts; lying that he lacked access to social media; and deleting relevant social media postings. The conduct was in bad faith.
- Arriaga v. Dart, 2023 WL 1451526 (N.D. Ill. Feb. 1, 2023). Plaintiff required to identify social media users who received certain shared information. Private information is not necessarily privileged, and no privilege applies.
- Smith v. Pergola 36 LLC, 2022 WL 17832506 (S.D.N.Y. Dec. 21, 2022). Plaintiffs compelled to comply with defendant’s targeted request for social media information concerning their emotional distress allegations concerning certain entertainment venues. It is not burdensome to require a search of social media accounts for relevant discovery. search of social media accounts for relevant discovery.
- Pruitt v. K&B Transportation, Inc., 2022 WL 17082522 (S.D. Ill. Nov. 18, 2022). Plaintiff compelled to provide social media data from her multiple accounts relating to the accident, her injuries, or her mental and physical state from the date of the accident forward.
- Williams v. First Student, Inc., 2022 WL 7534247 (D.N.J. Oct. 13, 2022). Plaintiffs ordered to produce the minor plaintiffs’ social media in native, rather than PDF, format.
- Romero v. CoreCivic, Inc., 2022 WL 4482865 (Mag. D.N.M. Sept. 27, 2022). Plaintiff’s social media history is relevant to plaintiff’s mental and emotional state, which plaintiff has put at issue, as well as to his social life, relationship with a particular person, and to the incident at suit. The time period is reasonable.
- Leslie-Johnson v. Eckerle, 653 S.W.3d 588 (Ky. Sept. 22,2022). Discovery request for nine years of plaintiffs’ social-media data was reasonable in medical-negligence action. As plaintiffs put their mental and emotional state directly at issue, discovery of their social media accounts is reasonable. The information was not privileged and possible inclusion of irrelevant, and possibly embarrassing, information on its own is not enough to preclude discovery. An extended time period was justified by plaintiffs’ tardiness. A confidentiality order precludes improper dissemination.
- Gentile v. Ogden, 174 N.Y.S.3d 112 (N.Y. App. Div. Aug. 31, 2022). Order compelling plaintiff to produce all relevant social media activity from all of her social media accounts from three years prior to the accident. These accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.
- Wilson v. Preferred Family Healthcare, Inc., 2022 WL 2157033 (E.D. Mo. June 15, 2022). Social media discovery is proper where a plaintiff puts physical capability at issue. Social media is neither privileged nor protected by any right of privacy. Plaintiff must produce social media posts relating to her disabilities or emotional distress, including any entries relating to plaintiff’s physical or mental wellbeing while in defendant’s employ.
- Ferguson v. Durst Pyramid, LLC, 169 N.Y.S.3d 253 (N.Y. App. Div. May 17, 2022). Defendant entitled to access to plaintiffs’ social media accounts for post-accident photographs of social and recreational activities.
- Torres v. County of Columbia, 2022 WL 1125365 (D. Or. April 14, 2022). Plaintiff’s action ordered dismissed because plaintiff failed to provide social media information sought by defendants in discovery, delayed providing information to defendants, deleted relevant information from his social media, and made misleading representations during discovery.
- Vega v. Geico General Insurance Co., 2022 WL 1081565 (Mag. M.D. Fla. April 11, 2022). Plaintiff compelled to produce account data for her social media accounts, including her account history, profile information, postings, pictures, and data available from the date of the accident at issue through the present. Social media is generally discoverable and not privileged, particularly where a plaintiff’s physical condition is at issue.
- Kwasnik v. Ocean State Job Lot of CT2004, LLC, 2022 WL 1153806 (Conn. Super. April 6, 2022). Nonsuit entered as a sanction for plaintiff’s persistent failure to produce his social media comments, after first having falsely denied that such comments existed.
- Sanchez v. Albertson’s, LLC, 2022 WL 656369 (Mag. D. Nev. March 3, 2022), adopted, 2022 WL 2982926 (D. Nev. July 27, 2022). Several facts deemed established and plaintiff barred from using any evidence of his social media accounts due to plaintiff’s failure to produce social media information.
- Fast v. GoDaddy.com LLC, 340 F.R.D. 326 (D. Ariz. Feb. 3, 2022). Plaintiff sanctioned with an adverse inference, the jury being informed of plaintiff’s undisclosed redactions, attorney fees, and forensic review of all devices, due to a pattern of deleting, withholding, and altering several categories of social media information. Plaintiff acted deliberately and with intent to deprive the defendant of the information.
- Milke v. City of Phoenix, 2022 WL 259937 (9th Cir. Jan. 27, 2022). Dismissal with prejudice as a sanction affirmed where plaintiff and her lawyers directed the removal or destruction of a website and social media pages about her case, along with other serious spoliation of evidence.
- Hice v. Lemon, 2021 WL 6053812 (Mag. E.D.N.Y. Nov. 17, 2021), adopted, 2021 WL 6052440 (E.D.N.Y. Dec. 21, 2021). Plaintiff sanctioned with an adverse inference and attorney fees for hiding and destroying relevant social media information. Intent proven by circumstantial evidence.
- Pletcher v. Giant Eagle, Inc., 2021 WL 6061666 (Mag. W.D. Pa. Nov. 8, 2021), adopted, 2021 WL 6061715 (W.D. Pa. Nov. 16, 2021). Plaintiff sanctioned with an award of fees and costs largely due to failure to produce social media posts pertaining to a private group related to the litigation.
- Armijo v. Costco Wholesale Warehouse, Inc., 2021 WL 6425213 (Mag. D. Haw. Nov. 5, 2021). Plaintiff compelled to produce social media accounts and usernames from for eight years, specifically including an account he falsely denied having. Plaintiff has put his medical, physical, emotional, and mental condition at issue so that his social media accounts are clearly discoverable.
- Pepin v. Wisconsin Central Ltd., 2021 WL 4472797 (W.D. Mich. Sept. 30, 2021). Defendant allowed to introduce evidence at trial of plaintiff’s deletion or concealment of his photographs and other social media posts. Plaintiff’s conduct during discovery is relevant in that it shows a lack of candor and a willingness to hide evidence that might undermine his claims.
- Anderson v. CentraArchy Restaurant Management Co., 2015 WL 14027660 (Mag. N.D. Ga. June 26, 2015). Plaintiff held in contempt for failure to comply with social media discovery. Plaintiff ordered to produce all user names, passwords, login identifications, and any and all other information required to permit defense counsel to access and inspect plaintiff’s social media accounts, and is assessed attorney fees and costs. Defendant must prepare an appropriate confidentiality order.