In our recent ediscovery for defendants update, we highlighted two of the twenty-eight cases we included as the most important: 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). Today we’re explaining why.
Tasigna has significance because it addressed discovery of plaintiffs’ social media in the context of an MDL. MDLs, we know from hard experience, invariably impose extensive and expensive ediscovery obligations on defendants – while plaintiffs ordinarily skate (Taxotere being the notable exception). The general ediscovery order entered in Tasigna, however, imposes significant ediscovery obligations on MDL plaintiffs.
First, plaintiffs must download and produce their social media activity “in full.” 2023 WL 6064308, at *1. Plaintiffs’ argument to limit their discovery to “search term” production failed because “search terms cannot be tailored sufficiently to capture responsive social media postings, particularly given the often casual nature of such discourse.” Id. “[U]nusual” plaintiffs may seek individual relief, and if “broad areas” of social media turn out to be irrelevant, “and there is a way to segregate such material,” plaintiffs can propose targeted limits. Id.
Second, plaintiffs cannot get away with mere “manual search” of their social media “unless they are going to undertake to certify that they have reviewed every piece of ESI in the device during the manual search and nothing responsive has been found.” Id. That means plaintiffs would actually have to do the work, which they won’t. Thus the Tasigna plaintiffs must submit their devices to “a technical search process to apply search terms in finding the responsive documents.” Id.
In Davis, a New Jersey appellate court, in a published, precedential opinion, affirmed a discovery order in an employment action that required production of the plaintiff’s “private social media posts.” 291 A.3d at 816. Among other things, the plaintiff claimed “ongoing” emotional distress. Id. The court found “no merit to plaintiff’s assertion that her private social media posts are off limits from defendants’ discovery requests based upon her . . . emotional distress claims.” Id. at 818. The statutes plaintiff relied on (a state social media privacy statute and the federal Stored Communications Act) did not apply in litigation where the plaintiff had placed her condition at issue. Id. at 819.
Neither statute indicates nor implies that a person’s private social media content is not subject to civil discovery. . . . To interpret either statute’s plain language as a declaration that private media posts are not subject to discovery would, in essence, impose restrictions that are not expressed in either statute. This is not the role of our courts.
Id. at 820 (citation omitted).
Davis also knocked down a parade of meritless arguments that many plaintiffs have advanced in opposition to complying with social media discovery. First, civil discovery in New Jersey (as elsewhere) extends to “all relevant, non-privileged information.” Id. “The rules do not extend a privilege to private social media account information.” Id. Rather, “a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.” Id. (citation and quotation marks omitted). Because “a ‘private’ social media post is generally not privileged, nor is it protected by common law or civil law notions of privacy,” the “plaintiff’s private social media posts [we]re not privileged and [are] subject to discovery in conformity with our discovery rules.” Id. (citation and quotation marks omitted).
Nor was the trial court’s order compelling production so overly broad as to be an abuse of discretion. Under N.J. Rule 4:10-2(a), which generally parallel the corresponding federal rule, the plaintiff’s social media was discoverable as “relevant to whether defendants’ conduct caused her severe emotional distress.” Davis, 291 A.3d at 824. The ediscovery was not unlimited, embracing “posts concerning comments or images depicting plaintiff’s emotions, celebrations, vacations, employment, and health,” but it did not extend to posts about other people. Id. Ediscovery was limited in time to three years. Id. at 825. The relevance of such admissions where the plaintiff was suing for emotional distress was plain:
It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.
Id. at 824 (citation and quotation marks omitted).
Conversely, the Davis court “reject[ed] the arguments of plaintiff and amici that private social media posts have the same privacy interest as personal financial records.” Id. at 825. The comparison to financial records was bogus:
[T]here is no confidentiality commitment or legal authority preventing an approved private recipient from sharing another’s private posts, either verbally or by sending a screenshot to a non-private member. A member of a private social media group may have a moral obligation not to share posted content, but the content does not have the contractual and lawful protections afforded to personal financial and tax records. Persons who choose to post social media messages and photos necessarily assume the risk that intended recipients will share the information with others.
Nor was the scope of discovery under the rules of civil procedure limited by the questionable opinions of “some social scientists” that social media posts do not reflect “a realistic portrayal of someone’s life.” Id. Whether social media evidence is “reliable” – essentially where a financially-motivated plaintiff claims after the fact that his or her own posts weren’t true – is an issue for trial, not discovery. Id. Further, a plaintiff’s assertion that s/he lied on social media, was itself grounds for the defendant to question that plaintiff’s credibility:
[D]efendants could plausibly use the posts to attack plaintiff’s credibility by arguing if private posts are not a true reflection of her thoughts, then why should a factfinder determine that her discovery responses and trial testimony are true. We reject the notion that plaintiff’s private social media posts are not discoverable because readers might reach different conclusions as to whether and to what extent a particular post reveals her emotional state.
Finally, plaintiff could not bootstrap from her own “avid” use of social media that ordering its production made such discovery overly burdensome:
We appreciate plaintiff’s counsel’s contention at oral argument that plaintiff made daily private social media posts, thereby making the collection of her posts arduous. However, plaintiff’s avid use of social media should not be a bar to defendants’ legitimate discovery request given that her posts may be a window into her emotional state, which is in dispute.
Id. at 826.
The only thing that the plaintiff won in Davis was a process for in camera (“by the judge in chambers” in legal Latin) review of any particular posts as to which there was a relevance dispute. Id.
While we think Tasigna and Davis were the two most significant social media discovery decisions issued over the past couple of years, we remind our readers that our recent update contains 26 other recent favorable decisions, and that our complete cheat sheet now includes well over 200 decisions – all of which either permitted social media discovery or sanctioned plaintiffs who refused to comply with such discovery.