Until very recently, the only state high court decisions (from VA and DE) on our ediscovery for defendants cheat sheet involved sanctions against plaintiffs for destroying social media evidence.

No longer.

In Forman v. Henkin, ___ N.E.3d ___, 2018 WL 828101 (N.Y. Feb. 13, 2018), the New York Court of Appeals reaffirmed that discovery of plaintiff social media is available to defendants on the same basis as any other discovery, and put the kibosh on plaintiff-friendly discovery restrictions that had lower New York courts had developed to hamstring defendants seeking access to plaintiffs’ social media.

Forman was about as far from prescription medical product liability as one can get and still involve personal injury.  The plaintiff fell off a horse, was badly injured, and sued the owner of the horse. Forman, 2018 WL 828101, at *1.  Plaintiff, who claimed to have become “reclusive” following the accident, was a heavy social media user:

At her deposition, plaintiff stated that she previously had a Facebook account on which she posted “a lot” of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted.

Id.  She also claimed to “ha[ve] difficulty using a computer and composing coherent messages” after her accident.  Id.  Thus, the relevance of plaintiff’s social media activities was as plain as the nose on that horse’s face.  After plaintiff testified to these facts, social media information confirming or refuting them, at minimum, bears on credibility, and goes to damages, as well – right?

Well…. Not as the Appellate Division saw the issue (note: only plaintiff appealed, so the issues being considered are somewhat narrow).  It limited disclosure only “to photographs posted on Facebook that plaintiff intended to introduce at trial” and “eliminate[ed] the authorization permitting defendant to obtain data relating to post-accident messages.”  Forman, 2018 WL 828101, at *2.  Why?   The Appellate Division held that unless the defendant could find something in plaintiff’s public social media suggesting a specific basis for additional discovery, the defendant had no right to any discovery from the plaintiff’s private social media:

[T]he Appellate Division . . . employ[ed] a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account. . . .  Several courts applying this rule appear to have conditioned discovery of material on the “private” portion of a [social media] account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party’s allegations in some respect.

Id. at *4 (citations omitted).

The defendant argued that its right to discover relevant evidence under the control of an opposing party is not predicated on the legal equivalent of a snipe hunt.  Id.  Thankfully, the Court of Appeals “agree[d],” id., and threw out the Appellate Division’s made up impediment to ediscovery for defendants.  First, discovery is discovery, no matter who seeks it:

Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: “[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof.”  We have emphasized that the words material and necessary are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy.

Id. at *2 (citation and quotation marks omitted).  New York recognizes only “three categories of protected materials” – “privileged matter,” “attorney[] work product,” and “trial preparation materials.”  Id.  A plaintiff’s (or defendant’s, for that matter) social media doesn’t fit in any of these categories.

Beyond the three categories, discovery may be limited if unduly “onerous.”  Id. at *3.  Discovery of photos actually posted by the plaintiff (with an exception for “nudity or romantic encounters” specified by the trial court) wasn’t “onerous” either, and plaintiff did not argue otherwise.  Id.

The Court of Appeals in Forman flatly rejected the plaintiff’s supposed precondition to social media discovery, recognizing that it would let plaintiffs hide the ball:

[A] threshold rule requiring that party [seeking discovery] to “identify relevant information in [the social media] account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account.  Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible − and not, as it should, on whether it is “material and necessary to the prosecution or defense of an action.”

Forman, 2018 WL 828101, at *4 (citation, quotation marks and footnote omitted) (emphasis added).  Hear, hear.

Rather, the principle circumscribing social media discovery is the same as for all discovery – relevance to the theories and defenses of the particular case.  While blanket discovery of everything in every case, whether social media or otherwise, would be “onerous,” id., discovery tailored to the plaintiff’s claims and the defendant’s defenses is normal and proper:

[T]here is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.”  In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the [social media] account.

Id. at *5.  Plaintiffs would have a chance to assert “any specific ‘privacy’ or other concerns” about the social media discovery being sought.  Id.  In “a personal injury case . . . it is appropriate to consider the nature of the underlying incident and the injuries claimed.”  “Temporal limitations may also be appropriate” so that social media “posted years before an accident” may not “be germane.”  Id.

The Court of Appeals also rejected the plaintiff’s argument that social media discovery “necessarily constitutes an unjustified invasion of privacy.”  No it doesn’t.  A plaintiff who brings a lawsuit necessarily waives privacy with respect to evidence relevant to that action.

We assume . . . that some materials on a [social media] account may fairly be characterized as private.  But even private materials may be subject to discovery if they are relevant.  For example, medical records enjoy protection in many contexts under the physician-patient privilege.  But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records − including the physician-patient privilege − are waived.  For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Forman, 2018 WL 828101, at *5 (citation omitted) (emphasis added).  We note that one of the omitted citations is to Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007), the decision confirming defendants’ right to informal interviews with treating physicians in New York, which we blogged about, here).

In short, plaintiffs who don’t want to produce their social media shouldn’t be plaintiffs.  If you can’t stand the heat, get out of the courtroom.

Thus, it was “err[or]” to condition discovery of “private” social media on what a plaintiff might, or might not, have done on public social media.  The Appellate Division had “effectively denied disclosure of any evidence potentially relevant to the defense.”  Id. at *5 n.6.  Rather, plaintiff’s testimony about her social media activities “more than met [any] threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  Id. at *5.  Any photos of plaintiff’s activities “might be reflective of her post-accident activities and/or limitations.”  Id.  Further, “data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer.”  Id. at *6.

Forman thus confirms what we have always thought – anything a plaintiff puts on social media is fair game for discovery, to the same extent as any other information under the plaintiff’s custody and control.  Decisions that seek to impose additional limitations on social media discovery, because social media is somehow different or more private, are wrongly decided.

Today’s guest post is by Reed Smith‘s Lisa Baird, who has written about her recent experience with mandatory initial discovery, as practiced in a “Pilot Project” in place in certain federal district courts.  It was interesting – in the “stop and think before you remove to federal court” sense of interesting.  As always our guest posters deserve 100% of the credit, and any blame, for their guest posts.  The floor is yours, Lisa.


Last summer, my firm’s clients faced two matters filed in rapid succession in the District of Arizona and the Northern District of Illinois.  As luck would have it, these are the only two districts participating in the Federal Judicial Center’s Mandatory Initial Discovery Pilot Project (MIDPP), and that meant we were in for a bit of a surprise.

When the pilot project first was announced in April 2017, it received a smattering of attention in the legal press before seemingly fading from view.  So you may be asking yourself (as I did), what is the MIDPP?   The short answer is that, in the adopting courts, it has worked significant changes to the Federal Rules of Civil Procedure regarding discovery and responsive pleading without following the usual procedures for rules amendments.  It also has up-ended the important principle from Ashcroft v. Iqbal, 556 U.S. 662 (2009), that an inadequate complaint “does not unlock the doors of discovery.”

Some important takeaways about the MIDPP are that:

  • Answers must be filed even if a motion to dismiss “or other preliminary motion” has been or will be filed, unless the court defers the responsive pleading deadline “for good cause” and the motion to dismiss is on one of three specified grounds: (1) lack of subject matter or personal jurisdiction; (2) sovereign immunity; or (3) absolute or qualified immunity of a public official.
  • Mandatory initial disclosures—which supersede the initial disclosures otherwise required by Federal Rule of Civil Procedure 26(a)(1)—are due within 30 days of the response to the complaint.  A 30-day extension of this deadline is provided for only if the parties certify that they have a good faith belief the case will settle within that additional 30-day period.
  • The MIDPP’s mandatory initial disclosures include:
      • Names and contact information for persons likely to have discoverable information, along with a description of the information they are believed to possess;
      • Written or recorded witness statements, unless privilege or work product is asserted;
      • A list of documents, electronically stored information (ESI), and tangible things that may be relevant and are known to exist, regardless of who possesses them; and
      • A statement of facts relevant to each claim or defense “and the legal theories upon which it is based.”
  • All hard copy documents and ESI falling within the subject matter of the initial disclosures must be produced within 40 days after service of the initial disclosures themselves “unless the court orders otherwise.”  In other words, ESI usually will have to be produced about 90 days after service of the complaint (service date + 21 days for responsive pleading + 30 days for mandatory initial disclosures + 40 days to make ESI production).
  • The parties have a continuing duty to supplement their productions within 30 days of the discovery of any new ESI.
  • Parties must disclose “facts relevant to the claims and defenses in the case, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses.”

Make no mistake:  the discovery and answering obligations imposed by the MIDPP are onerous and there is little flexibility in the model documents as written.  In practice, it appears that individual judges sometimes are willing to exercise discretion to continue the “mandatory” deadlines when reason and good judgment dictate doing so, even though the MIDPP contemplates only limited extensions in very narrow circumstances.  Given that one of the initial messages about the MIDPP was that its requirements were mandatory and parties could not opt out of the required initial disclosures, however, it probably would be best not to count on routine extensions or exceptions.

The stated purpose behind the MIDPP certainly is laudable enough: reducing cost and delay in litigation.  But the net effect in more complex cases—such as product liability actions filed against drug and medical device manufacturers—may be the opposite.

In drug and device product liability litigation, discovery burdens are unequal and fall more heavily on defendants, and there is no reason to think that will change under the MIDPP.  Moreover, motions to dismiss are an essential tool for reducing costs and speeding up case resolution in drug and device cases because of unique, dispositive issues such as preemption.  Yet because the MIDPP forces the parties into immediate, extensive, mandatory discovery and forces the defendant to answer before any motion to dismiss is heard or decided, sweeping litigation may be well underway before the court decides that the case lacks sufficient merit to proceed.

For example, manufacturers of medical devices with premarket approval rely heavily on Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), and the often-dispositive issue of preemption.  But the MIDPP forces these defendants to engage in early, mandatory discovery and to file an answer the complaint, even when the defendant’s preemption-based motion to dismiss is pending and likely dispositive of the lawsuit.

Perhaps the only silver lining for drug and device manufacturers is that MDL-bound cases are among the few types of civil cases excluded from the MIDPP.

For those interested in the details, the District of Arizona rolled out its MIDPP for cases filed on or after May 1, 2017 though General Order 17-08, and the Northern District of Illinois rolled it out for cases filed on or after June 1, 2017 (and assigned to participating judges) through General Order 17-2005 and a Standing Order.  There also are users’ manuals for both courts (D. Ariz. and N.D. Ill.) as well as checklists (D. Ariz. and N.D. Ill.).  This pilot project is meant to last three years, and so far it is limited to these two districts.

Surely there is room for improvement, however.  If not wholesale revisions that acknowledge the Supreme Court’s pronouncement in Iqbal that the “doors of discovery” do not unlock for a deficient complaint, then perhaps an expansion of the lists of motions which defer the duties to answer and provide the mandatory discovery.  Or a provision allowing the parties to agree that the deadlines should be delayed in a given case, when a potentially meritorious motion to dismiss is pending.  Or explicit recognition that courts may extend the deadlines for answering and providing mandatory discovery in their discretion.  Or, if getting on with it is so important, then a companion requirement for expedited motions to dismiss so that they can be briefed and ruled on before any duty to answer and provide mandatory discovery arises.

The Federal Judicial Center suggests providing comments about the MIDPP (or any other civil procedure issue) to the Committee on Rules of Practice & Procedure for the U.S. Courts at its email address.  The District of Arizona has an email box for providing comments to that court; it also has an annual conference on March 9, 2018, and one would think the MIDPP would be a central topic of discussion during the civil breakout session.  The Northern District of Illinois has an email box for comments on proposed amendments to the local rules, and although that email address is not identified as being for the MIDPP specifically, one would think that it would work for that purpose as well.

When Congress enacted HIPAA and its Privacy Rule in the mid-1990s, it was a big deal. Healthcare providers surely protected patient privacy in the pre-HIPAA days, but the federal statute gave them a standard set of rules with which to comply and a uniform referent against which to gauge their privacy practices.  All told, HIPAA’s impact has been both pervasive and positive.  Moreover, one of its lasting virtues is that, because the statute created no private right of action, you can’t get sued under HIPAA.

At least not directly. A plaintiff cannot file a complaint outwardly claiming damages for a “HIPAA violation,” but that has not stopped some state courts from permitting negligence claims using HIPAA to define a standard of care.  The latest is Connecticut, whose Supreme Court recently created the new tort of “unauthorized disclosure of confidential information.”

The case is Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540 (2018) (to be published in A.3d), and its outcome will give healthcare providers in Connecticut even greater pause when producing medical records in litigation.  In Byrne, the plaintiff/patient instructed the defendant healthcare provider not to release her medical records to her ex-boyfriend, who later filed a paternity action against the plaintiff. Id. at 542.  The defendant healthcare provider then received a third-party subpoena in the paternity action ordering a records custodian to appear and produce the patient’s medical records, which the provider did by mailing records directly to the court a few days later. Id.

This is where Connecticut’s new tort comes in. Alleging that her ex-boyfriend viewed her records in the court file and then harassed her, the patient sued her doctor for breach of contract and negligence in multiple forms. Id. at 543-44.  The trial court ruled initially that the negligence claims were preempted because the plaintiff was using HIPAA as the basis for her claims. Id. at 544-545.  The Connecticut Supreme Court, however, reversed that order in 2014 and held that HIPAA did not preempt the claims.  Given the purpose of HIPAA—i.e., to enact uniform rules—and the transparent nature of the plaintiff’s effort to enforce HIPAA through civil litigation that the statute does not permit, we would have criticized this ruling had we written on it when it came out in 2014.

But that is not today’s story. On remand, the trial court again ruled for the defendant and granted summary judgment on the basis that Connecticut law did not recognize a common law claim for breach of physician confidentiality. Id. at 548.  On appeal, the Connecticut Supreme Court filled that gap:

We conclude that recognizing a cause of action for the breach of the duty of confidentiality in the physician-patient relationship by the disclosure of medical information is not barred by [Connecticut statutes] or HIPAA and that public policy, as viewed in a majority of other jurisdictions that have addressed the issue, supports that recognition.

Id. at 550. So Connecticut patients not only can sue their doctors now for negligently disclosing their medical information, but can do so for responding to a subpoena in a pending legal action.

The core of the opinion examines both federal law and other states’ laws to conclude that the “majority” support the new cause of action. On federal law, the Court held that HIPAA supported a common law claim because Connecticut doctors follow HIPAA anyway and that a state-law tort would support HIPAA:

We further conclude that, to the extent it has become common practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to their patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medical records pursuant to a subpoena.

. . . [N]egligence claims in state courts support at least one of HIPAA’s goals by establishing another disincentive to wrongfully disclose a patient’s health care record.

Id. at *556-57.

As for other states’ laws, the Court surveyed state cases and found eight states that recognized comparable claims (although the one case cited from New York does not really say that) and four that did not. Id. at 557-68.  In following the states that have recognized the tort, the Court cited various sources for the duty, including state licensing statutes, evidentiary rules governing privileged communications, common law “principles of trust,” and the Hippocratic Oath. Id. at 564.

We have a few questions about this new tort. First, it is highly questionable to cite federal law as “supporting” a civil action with HIPAA defining the standard of care.  As even the Connecticut Supreme Court acknowledged, “It is by now well settled that the statutory structure of HIPAA . . . precludes implication of a private right of action.” Id. at 555.  Having recognized this principle on the one hand, the Court should not have invoked HIPAA to support its new private right of action on the other.

Second, it stands out that the Court spent about nine pages discussing the state authorities that support its position, but dismissed the four states that reject the tort in a single paragraph and a single sentence of analysis: “[Connecticut statutes] created a broad physician-patient privilege, and, therefore, the rationale of these jurisdictions that decline to recognize a common-law action for breach of duty of confidentiality is not persuasive in Connecticut.” Id. at 567.  More discussion of the contra authorities would have been helpful, especially considering that Connecticut is not unique in recognizing a physician-patient privilege.

Third, what are healthcare providers supposed to do? The ex-boyfriend served a subpoena, a court-issued document that millions of litigants rely on every day to obtain documents—including medical records.  The Connecticut Supreme Court’s first reaction is to denigrate subpoenas.  Connecticut law allows disclosure of medical records without patient consent only pursuant to “statute or regulation of any state agency or the rules of court.” Id. at 568.  According to the Court, a “subpoena without a court order” is none of those things. Id. That leaves us scratching our heads, because subpoenas in our home state and also in federal court are authorized by statute and/or court rules.  We would be surprised if the law of Connecticut were different.

The Court also placed great weight on the fact that the healthcare provider did not appear in person to produce the records and did not alert the patient/plaintiff or move to quash. Id. at 569-72.  But even though subpoenas routinely order record custodians to “appear” with records, they almost never do.  They make the records available for copying, or they mail them, which is what the healthcare provider did here.  This strikes us as creating a new cause of action on the back of a technicality.  As for the requirement that the provider alert the plaintiff or seek a judicial remedy, the Court cited federal regulations.  So now we are back to enforcing HIPAA.

We sometimes advocate for a high regulation, low litigation approach to product liability, and that approach particularly suits the protection of private information. Healthcare providers take patient privacy seriously, and when pulled involuntarily into litigation, the rules they need to follow ought to be clear.  Connecticut’s new tort does not advance that cause.

We update our cheat sheet devoted to ediscovery for defendants differently than the others.  Because of the broad nature of the topic – these cases arise in a wide variety of non-drug/device contexts – other personal injury, employment, civil rights, occasionally even criminal litigation.  That means we have to research them separately to find what we need to include.  That is more taxing than our usual routine because it means looking through hundreds of cases to find the ones that are:  (1) on point, and (2) favorable to our side of the “v.”  Thus, it has been a while since we last updated, but we just did it now.  The new opinions are below, and every one of them either allows access to a plaintiff’s social media activity or imposes sanctions (often for spoliation) on plaintiff for resisting such discovery.

Once again, although we’ve read all the relevant social media discovery cases, we include only the good ones – because we don’t believe in doing the other side’s research for them.  A couple of words to the wise arising from the rest are appropriate.  First and foremost, if you’re representing a defendant and are considering making a broad request for social media discovery at the very outset of the case – DON’T.  Without anything more solid than generalized suspicions as reason for a deep dive into an opponent’s social media, courts are not impressed and are likely to treat it as a “fishing expedition.”  Most of the time a blanket social media discovery demand will succeed only when the defendant has caught the plaintiff in a lie – with contradictory public social media evidence − or the plaintiff has attempted to delete or otherwise hide social media activity.  The key word is “investigate.”  Once the tip of the spear penetrates a plaintiff’s shenanigans, the rest follows more easily.

Second, in the absence of such hard evidence, the defense is well advised to start small, with less intrusive discovery.  Instead of asking for everything at once, check with an ediscovery specialist and consider proposing sampling – 5% or 10% of all posts – as something less intrusive, but statistically likely to find contradictory evidence if it exists.  An active social media user (the type most likely to generate useful information) will usually have published thousands of posts and other types of entries.  In that situation, sampling is very likely to reveal something significant present in a plaintiff’s social media.  The sampling can then support a broader discovery demand.

With those caveats, here is the latest favorable set of cases in which defendants have successfully engaged in discovery of plaintiffs’ electronic activities:

  • Shawe v. Elting, 157 A.3d 142 (Del. Feb. 13, 2017). Plaintiff properly sanctioned for deliberate and reckless deleting email and text messages by being ordered not only to pay all expenses of recovery but also a percentage of defendant’s total counsel fees, due to the spoliation complicating the conduct of the litigation general.
  • State v. Johnson, 2017 WL 1364136 (Tenn. Crim. App. April 12, 2017). Although the Shared Communications Act prohibited criminal defendants from obtaining a witness’ social media content from social media platforms, the defendant had established good cause to obtain such evidence directly from the witnesses who were social media users. They are not privileged. The subpoenae to the witnesses were not oppressive.
  • Lawrence v. Rocktenn CP LLC, 2017 WL 2951624 (Mag. W.D. La. April 19, 2017). Plaintiff must produce all text messages, photographs and videos that concern: (1) plaintiff’s physical capabilities; (2) that allegations in the complaint; (3) emotional distress; (4) any decline in plaintiff’s marriage; (5) alternative causes of the injuries; and (f) plaintiff’s activities during the claimed period of disability.
  • Flowers v. City of New York, 55 N.Y.S.3d 51 (N.Y. App. Div. June 20, 2017). Evidence from plaintiff’s public social media contradicted the plaintiff, thereby justifying discovery from plaintiff’s private social media accounts, including deleted material, relating to the same subject matter. Plaintiff shall provide a release to obtain material, including metadata, from the provider.
  • Walker v. Carter, 2017 WL 3668585 (S.D.N.Y. July 12, 2017). Plaintiff sanctioned for failure to produce relevant text messages. Must pay defendant’s increased attorney’s fees.
  • Ottoson v. SMBC Leasing & Finance, Inc., ___ F. Supp.3d ___, 2017 WL 2992726 (S.D.N.Y. July 13, 2017). Plaintiff sanctioned for failure to preserve text messages and emails concerning the events at issue. The jury will be instructed on an adverse spoliation inference.
  • Jones v. U.S. Border Patrol Agent Gerardo Hernandez, 2017 WL 3525259 (Mag. S.D. Cal. Aug. 16, 2017). Plaintiff must produce a GPS-based map generated by his fitness watch.
  • Ehrenberg v. State Farm Mutual Automobile Insurance Co., 2017 WL 3582487 (Mag. E.D. La. Aug. 18, 2017). With respect to social media, plaintiffs must produce posts and photos: (1) relating to the accident, (2) relating to all physical injuries whether or not caused by the accident, (3) reflecting plaintiff’s physical activity, (4) relating to plaintiff’s emotional distress; (5) relating to alternative emotional stressors; (6) concerning plaintiff’s vacations.
  • Calleros v. Rural Metro, Inc., 2017 WL 4391714 (Mag. S.D. Cal. Oct. 3, 2017). In class action over alleged deprivation of rest breaks, defendant is entitled to social media discovery of any activity plaintiffs engaged in while on company time.

The federal Advisory Committee on Rules of Civil Procedure released its latest Civil Rules Agenda Book on November 7, 2017. A copy of it is available here.  A couple of items on the agenda should be of interest to blog readers.

The first topic has to do with proposed changes Fed. R. Civ. P. 30(b)(6), dealing with corporate witness designations (see tab 5 beginning on page 171). The following changes are under consideration:

  • Inclusion of specific reference to Rule 30(b)(6) among the topics for discussion at the Rule 26(f) conference, and in the report to the court under Rule 16.
  • Amending Rule 30(b)(6) to clarify that testimony at a Rule 30(b)(6) deposition is not a judicial admission.
  • Requiring and/or permitting supplementation of Rule 30(b)(6) testimony.
  • Forbidding contention questions in Rule 30(b)(6) depositions.
  • Adding a provision for objections at Rule 30(b)(6) depositions.
  • Amending Rule 30(b)(6) to address the application of limits on the duration and number of depositions.

The second topic has to do with requiring disclosure of third-party litigation funding arrangements (see tab 7B beginning on page 345). The proposed rules change would amend Fed. R. Civ. P. 26(a)(1)(A) to add a new subsection (v) to the items subject to mandatory initial disclosure:

(v) for inspection and copying as under Rule 34, any agreement under which any 5 person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.

The committee notes several areas of “disagreement” that would have to be resolved before a rules change could be adopted. These are:

  • Definition of what types of third-party litigation funding agreements are covered.
  • Whether a new disclosure rule for third-party litigation funding should be parallel to the existing requirement for disclosure of a defendant’s insurance policies.
  • Extent to which third-party litigation funders control or impact the conduct of the litigation at issue.
  • Extent to which third-party litigation funders control or impact settlement of the litigation at issue.
  • Possible impact of disclosure of third-party litigation funding on the parties’ strategic behavior.
  • Potential for conflicts of interests created by third-party litigation funding.
  • Whether disclosure of third-party litigation funding is important to judicial recusal.
  • Whether disclosure of third-party litigation funding would be a threat to attorney/client privilege or work product protection.
  • How proportionality affects disclosure of third-party litigation funding.
  • Whether third-party litigation funding increases frivolous litigation.
  • Possible conflict between disclosure of third-party litigation funding and state regulation of professional responsibility.

It appears uncertain whether the committee will seriously consider this proposal or continue to defer action as it did in 2014.  A possible motivating factor, not present in 2014, is the threat of congressional action to amend the rules.

Readers who are interested in either of these two issues can comment on them here.

A lot of time is spent in litigation on discovery. As tedious and non-exciting as it often is, cases can be won or lost depending on what happens during discovery. So, it’s not to be taken lightly. When we find ourselves arguing to the court about discovery, however, it is often without being able to point to much precedential case law. That’s because many courts simply rule from the bench perhaps entering only minute orders. And if case management orders are entered they often don’t rise to the level of being published, even electronically. We are then left scouring dockets looking for rulings or calling our colleagues hoping someone has an order that is helpful. So, we really appreciate when a helpful discovery ruling grabs our attention and we can in turn alert our readers to it.

One of the reasons that more routine discovery decisions don’t generate many opinions is that the rulings frequently turn on case specifics and common sense as opposed to more traditional legal analysis. That’s true of today’s decision. A lengthy order entered in the Abilify MDL setting forth essentially a list of decisions on multiple motions made by both plaintiffs and defendants. Certainly some are more case specific and not really worth much of a mention, so what follows is a list of the more general and most helpful rulings:

  • Confidentiality: The court allowed the parties to provisionally seal documents filed with their Daubert briefing and then at the conclusion of the briefing, the party who sealed the document had to show cause why the document should remain sealed. Defendants argued to keep certain very common categories of documents confidential:
    • Clinical case reports/adverse event reports: Defendants argued that these documents contain confidential patient identifying information and personal medical information. These aren’t plaintiffs – they are people who participated in studies or for whom an AER was prepared. They absolutely have a right to an expectation of privacy, not to mention the company has an obligation to protect that privacy. The court agreed – no public interest. In re Abilify Prods. Liab. Litig., 2017 U.S. Dist. LEXIS 161660, at *7-8 (N.D. Fla. Sep. 29, 2017).
    • Internal company documents: Defendants sought to maintain confidentiality of several categories of internal, non-public documents and the court agreed as to most. Specifically, the court found that all of the following should remain under seal: “standard operating procedures, non-public regulatory submissions, drafts of non-public regulatory submissions, or internal communications regarding the pharmacovigilance process.” Id. at *9. All things plaintiffs like to use to try the case in the media. As to SOPs, the court concluded they are proprietary and developed by the company at considerable expense. With respect to the rest, disclosure “would have a chilling effect on the pharmacovigilance process.” Id. Keeping the pharmacovigilance process confidential actually enables manufacturers to participate in the process in a “frank, open, and honest” way. Id.
    • Expert reports and testimony: Here the court was unwilling to seal expert reports and transcripts across the board. They have to be redacted to the extent they discuss any of the documents or information that the court said should remain confidential. Id. at *10-11.
  • Privilege: Plaintiffs complained that they were unable to assess defendants’ claims of privilege as to its documents because defendants were not producing privilege logs simultaneous with their document productions. Defendants correctly noted that simultaneous privilege logs would significantly slow production down – a production would have to wait the finalizing of the log before it could be produced. The court agreed.  Simultaneous production would be inefficient. Id. at *17-19.
  • Document Retention Policies: Plaintiffs want them, defendants objected. Court ruled: “in the absence of any suggestion of spoliation Defendants’ document retention policies are not relevant.” Id. at *24.
  • Other Drugs: Plaintiffs’ discovery requests included documents about other similar drugs, claiming the information would go to defendants’ knowledge. The court sustained defendants’ objection on the grounds of relevance and proportionality. Id. at *25. While other drugs in the same class may be similar, they were developed later in time, have different mechanisms, and different indications – making them marginally relevant. When you balance only marginal relevance against the issues involved in the litigation – and what we assume to be massive discovery already taking place as to the actual drug at issue — we think the court reached a sound conclusion regarding proportionality to the needs of the case.
  • Trial Pool Discovery: Plaintiffs requested many different types of information, including financial information relevant to sales representatives, physicians, and other consultants. Defendants sought to limit that discovery to just the individuals related to the cases being worked up as trial bellwethers. Again the court agreed. For example, plaintiffs’ request to know about payments and incentives to sales representatives and doctors should be narrowly tailored to those doctors who treated the bellwether plaintiffs and the sales representatives who called on those doctors. Id. at *26-27. The same applied to other categories of “liability” discovery that were more appropriately limited to the bellwether cases. “Expanding the scope to all Plaintiffs would be a Herculean task and impossible to complete in the time frame set by the Court.” Id. at *28.

All in all the rulings were very defense-friendly and provide some good cites for your next motion to compel or motion to quash.

A couple of weeks ago, we reported that, under pressure from the Drug and Device Law Rock Climber, we were headed to New York to see the Broadway production of Orwell’s 1984. Publicity surrounding this spectacle focused on audience members fleeing, fainting, and/or vomiting during the torture scene.  Incautiously well-fed (Vietnamese/Thai food from a singularly memorable Hell’s Kitchen bistro) and more than a bit apprehensive, we made our way into the theatre, where the assault on our senses began with a disconcerting background hum that continued until the curtain rose.  Whereupon ensued two hours of blinding flashes of light, lots of crashing sounds, plenty of blood, and some pretty cool dental torture.  We did not vomit, faint or flee.  And we liked the show more than we expected to, though we typically lean toward “happy” – the lauded and wonderful but lamentably short-lived recent revival of Finian’s Rainbow at Lincoln Center was right up our alley.

We thought about 1984 as we read today’s case. We are old enough to remember when a defendant had to hire a private investigator to play “Big Brother” and tease out deception in a plaintiff’s account of her limitations following an injury.  Nowadays, so-called “social media” have stepped in, in large measure, to fill those shoes, and discovery requests now commonly seek production of and access to those resources.

In In re: Cook Med., Inc., IVC Filters Mktg., Sales Practices & Prod. Liab. Litig., 2017 U.S. Dist. LEXIS 149915 (S.D. Ind. Sept. 15, 2017), the court addressed several discovery motions in a bellwether case approaching trial.  First, as a sanction for the plaintiff’s failure to produce a privilege log, the defendants sought an order holding that the plaintiff had waived all privilege objections.  The court denied the motion, finding that “a blanket waiver is not an appropriate sanction when the party seeking protection makes a good faith showing that the requested material is privileged.”  2017 U.S. Dist. LEXIS 149915 at *3.

Second, the defendants sought to compel responses to discovery requests to which the plaintiff had objected as overbroad because the defendants had defined “you” to include the plaintiff, her attorneys, and her representatives. The court said that this “fail[ed] to move” it because (we love this) “half of the interrogatories and responses in question do not even contain the word ‘you.’” Id. at *4.  Motion granted.

Third, the court properly held that the plaintiff waived objections she had failed to assert in her discovery responses, although it declined to order the plaintiff to produce all requested materials (which included emails between the plaintiff and her attorneys) irrespective of claims of privilege.

Fourth, the court addressed the defendants’ motion to compel the plaintiff to produce her Facebook profile and various posts in native file format though she had already produced them in PDF. The court declined to order production of all of the requested materials in native format and held that the defendant would be required to make a showing of its need for the metadata in the native file of any particular post.

Finally, the court turned to the scope of the defendants’ social media requests, which, it noted, had occupied much of the space in the parties’ briefs. First, in their brief, the defendants sought to compel the plaintiff’s social media log-in credentials, including her passwords.  Noting that the defendants already possessed the plaintiff’s usernames, the court held that the original interrogatory did not expressly seek passwords; as such, it declined to “compel a response to an interrogatory that does not exist.” Id. at *10.  But it dropped a footnote emphasizing that it would not likely have compelled the plaintiff to disclose her passwords in any event because it “struggle[d] to see how such staggering access [to the plaintiff’s private accounts] would be proportional to the needs of the case.” Id. at *10 n.6. The court elaborated, “The requesting party does not have an unfettered right to rummage through the responding party’s social media,” without a showing of relevance and appropriate limits on content and time period. Id. at *11.

To wit, the defendants next moved to compel the plaintiff’s private social media data related to her travel, social activities, medical conditions, and alleged damages. Noting that, because the plaintiff claimed loss of enjoyment of her life, depression, and continuing medical issues, the defendants would have been entitled to compel a response to interrogatories seeking the same information, the court granted the defendants’ motion.

Finally, the court declined the defendants’ request for screenshots of all of the plaintiff’s social media webpages from the date of her implantation with the defendants’ device to the present date, holding that the request was doomed by the lack of a content limitation. The court explained, “If the motion were granted, Plaintiff would have to turn over a screen shot of every private message she sent to anyone on any topic simply because she sent it after implantation.” Id. at *13.

In the end, an attenuated cautionary tale for anyone planning to sue anyone: while a court may not hand the opponent the figurative keys to your entire online life, postings that can be tied to your claims will find their way into your opponents’ hands, whether you posted them “privately” or not.

By the way, we just got tickets for the upcoming revival of Carousel, starring Jessie Mueller, whom we loved in Beautiful and Waitress. There will be no bloody tooth-pulling, and there will definitely be a show-stopping rendition of “You’ll Never Walk Alone.”  We can’t wait.

The cases we typically write about focus on events after medical products have made their way through the applicable regulatory process and been marketed in the United States.  The marketed product is used, people claim to have been injured by it, and they sue the manufacturer under various product liability theories.  Often, in the course of seeking lots of discovery about the product and manufacturer, the plaintiffs in such cases will seek documents relating to foreign regulatory submissions and interaction.  While there might be some relevance of such documents in some cases, getting and producing them tends a pretty big pain for reasons like privacy laws and translation.  Plus, there is plenty of room for confusion given different regulatory standards in the United States and elsewhere around the world.  Under the old version of Fed. R. Civ. P. 26, however, some degree of burdensome foreign discovery was pretty standard in large drug or device litigation.  We have seen some signs (like here and here) that the new version of Rule 26 will be less friendly to plaintiffs seeking foreign fishing expeditions.

Schueneman v. Arena Pharms., Inc., No. 10cv1959-CAB (BLM), 2017 WL 3118738 (S.D. Cal. July 21, 2017) (Magistrate order), aff’d 2017 WL 3587961 (S.D. Cal. Aug. 21, 2017), is a securities case based on the allegation that the defendant pharmaceutical company defrauded investors by its representations about the likelihood that its new weight loss drug would get approved by FDA.  The focus of the allegation is about tumors in a rat study that ultimately led to FDA issuing a non-approvable letter in October 2010.  (As an aside, the drug was developed with a serotonin receptor subtype mechanism of action that was supposed to avoid heart valve issues seen with other weight loss drugs, litigation over which included allegations about a signal from tumors in a rat study—although the main plaintiff expert supporting that allegation did not get past Daubert.)  The non-approval was made public at that time, although the plaintiff investors claim that they continue to have been misled for another three months.  (The decisions do not mention either, but there was a fair amount of press on the rat study in September 2010 and the drug was ultimately approved, after more research, in June 2012.)  In March 2012, the company submitted an application to the European Medicines Agency to try to market the drug in Europe.  After some back and forth, the company withdrew that application in May 2013.  (We are feeling parenthetical, so we will note that the withdrawal of the European application was also the subject of U.S. press attention, spurred on by Public Citizen, whose actions often seem coordinated with litigation efforts.)  The plaintiffs sought every document conceivably related to the European application and its withdrawal, even though the allegations in the case were about earlier representations about FDA approval.  Defendants balked and the fight was joined.

The requirement that discovery be “relevant to any party’s claim or defense and proportional to the needs of the case” allowed for a more rational analysis that we have seen in the past on such disputes.  Noting the “different standards utilized by the EMA and the FDA and the different time frames of the statements,” the court required plaintiffs to “explain how documents presented to the EMA, especially those unrelated to the Rat Study, are relevant to the issue in this case of whether Defendants ‘intentionally withheld information material to the market’s assessment of whether and when the FDA would likely approve [L]ocaserin.’”  2017 WL 3118738, *4.  Plaintiffs could not do that.  They also could not establish proportionality, a burden now assigned to the proponent of the discovery (although the posture here was a motion to compel rather than a motion for protective order).  Defendants had already produced or were producing lots of documents and estimated that a production of the documents at issue would take weeks and cost $80,000.  In the past, such a cost estimate for even marginal documents sought from a drug company would probably not be seen as an undue expense sufficient to cut off the discovery.  Now, in the age of proportionality, it is part of the puzzle:

Given the extremely broad discovery requests, including the fact that the requests are not limited to the Rat Study, the minimal relevance of the statements made after the class period in an application in the European Union involving drug standards that are different from those in the United States, and the large number of potentially responsive documents, the Court finds that requests 34-37 are not proportional to the needs of the case.

Id. Similar reasoning could be applied to disallow quite a few requests in drug and device product liability cases, particularly those on foreign regulatory discovery.

The defendant also forced plaintiffs to reveal the identity and contact information for six confidential informants relied upon for allegations in the complaint.  Plaintiffs claimed attorney work product protection, which the magistrate rejected and the district court found to be so frivolous as to merit the award of expenses under Fed. R. Civ. P. 37(a)(5). Id. at **6-7; 2017 WL 3587961, *2.  We cannot recall seeing a product liability plaintiff resist discovery on the basis for allegations in a complaint on a claim of work product protection, so we will not dwell on this holding—but the same reasoning would apply.  Rather than just sound like homers and cheer when a drug company wins discovery motions, we will say that we like it when discovery is ordered on the actual allegations in the complaint and limited on issues outside of the allegations in the complaint.

We all know how important a prescriber’s testimony is in a drug or device case. In many jurisdictions, the testimony of the prescriber is a mandatory requirement if a plaintiff is going to meet his/her burden of proof on a failure to warn claim. That’s because under an ordinary burden of proof, warning claims are dismissed on causation grounds where there is simply no evidence in the record about the prescribing physician’s actions. In other words, without evidence that a different warning would have altered the prescribing physician’s decision to prescribe, plaintiff hasn’t supported his claim.

Of course, this isn’t the case in jurisdictions where a “heeding presumption” puts the onus on the defendant to come up with affirmative proof of lack of causation. So, there are also, unfortunately, several jurisdictions where defendants are quite motivated to secure the prescriber’s testimony as well. We just posted last week about a case where the prescriber testified that he was fully informed of the risks and even if he had received the additional information plaintiff claimed he should have, he would have prescribed anyway. Under the learned intermediary doctrine, that testimony broke the causal chain on a failure to warn claim.

This means in every case, one side or the other (maybe even both) is looking to depose the prescriber. Sometimes that isn’t possible because he/she has died or can’t be found. And sometimes, the federal government simply says no. That happens when the prescriber is an employee of the U.S. Department of Veterans Affairs (the “VA”) and the plaintiff, a veteran, received his treatment, including prescription of the drug or device at issue at a VA hospital/clinic.

Generally, government employees are immune from discovery in private litigation under rules first set out in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1952). Pursuant to Touhy, a governmental agency can validly issue regulations restricting the availability of its personnel to participate (voluntarily or involuntarily) in private litigation. Id. at 468. Such discovery, the Court held, could easily become unduly burdensome to government operations. The “variety of information” that government employees possess” and “the possibilities of harm from unrestricted disclosure in court,” warrant “centralizing determination” concerning compliance with civil process. Id.

The VA has established its own set of Touhy regulations which can be found at 38 C.F.R. §14.800 et seq. And, if you’ve ever sent a Touhy letter to the VA requesting the deposition of a VA doctor, you’ve most likely received a courteous letter back denying your request and citing those regulations. Sometimes, further discussion can lead to an agreement to conduct a short deposition on a pre-determined set of topics. But, where a compromise with the VA cannot be reached, the issue may need to be litigated in federal court. Which brings us to today’s decision in Brown v. United States Department of Veterans Affairs, 2017 U.S. Dist. LEXIS 134556 (N.D. Ala. Aug. 22, 2017).

In this case, plaintiff was seeking to depose the doctor who had prescribed him Risperdal in connection with his products liability lawsuit pending in California state court. Id. at *1. His efforts to secure this testimony included multiple subpoenas issued by courts in California and Alabama, multiple emails with the Office of General Counsel for the VA, and a formal request for authorization of the deposition to the VA. Id. at *3-4. In its response to plaintiff’s request, the VA offered the following justifications for denying his request: conserving the time of VA employees to perform their official duties; the VA’s non-involvement in the state court case; that pertinent information can be obtained from production of the medical records; and that no advance authorization was sought per VA regulations. Id. at *5.

The court found none of these reasons persuasive. First, the court made clear that Touhy is not a locked door to the discovery of government information:

Application of Touhy regulations . . . is intended only to provide an orderly process by which a government agency may determine whether a demand for information from it is valid and lawful. Such regulations by themselves do not create a privilege or otherwise authorize the withholding of information.

Id. at *6; see also id. at *16-17 (Touhy does not “broadly exempt” the government from providing evidence). In the case of the VA, that process is a list of 15 factors to be considered in determining whether to allow a VA employee to testify. See 38 C.F.R. §14.804. But a list of factors isn’t enough. “There must be a good reason for an agency to withhold its evidence, and absent such a good reason, doing so is arbitrary, capricious, and an abuse of discretion.” Id. at *17. In this case, the court found the reasons the VA provided for withholding evidence simply didn’t make sense in light of the public’s right to obtain “every man’s evidence.” Id.

The VA’s first argument was burden/inconvenience. Section 14.804(a) provides that one consideration is “to conserve the time of VA personnel for conducting their official duties concerning servicing the Nation’s veteran population.” Certainly an honorable and essential service that nobody should be looking to undercut. But the court was perplexed at the VA’s assertion of this factor given that the deposition was limited to three hours, which even with prep time would likely mean no more than 8 hours total for the prescriber. Id. at *11.

[E]ight hours . . . is not a heavy burden of time compared to the need the plaintiff has for the testimony. It is ironic, indeed, that the VA does not consider supplying necessary information to veterans in need of it part of its “servicing of the Nation’s veteran population.”


The court also disagreed that plaintiff had not made a sufficient request for the testimony. He sent a letter summarizing the testimony that was sought and its importance. Plaintiff sought testimony about the doctor’s prescription of Risperdal to plaintiff and what the doctor knew about the drug when he prescribed it. Id. at *13. As the court acknowledged, what the prescriber knew concerning the risks of the drug is essential evidence for plaintiff’s case. “Only . . . the plaintiff’s treating physician, could provide this factual evidence.” Id. at *14-15. The VA’s argument that the necessary evidence can be obtained from the medical records fails for the same reason:

As mentioned already, under the Learned Intermediary Doctrine, necessary warnings related to drugs and medical devices are made to the treating physician, not the patient. This means that the plaintiff must explore, as a fact, whether [his prescriber] received any warnings or advisories regarding Risperdal, and their contents. Only [his prescriber] can supply this evidence concerning what he was told or read and what he knew about Risperdal when he prescribed it. That information is not likely reflected in medical records.

Id. at *20n.12.

The VA’s final argument was that it had “no direct or substantial interest in the private litigation between the plaintiff and the [drug] manufacturer.” Id. at *15. This lack of interest isn’t explicitly one of the 15 decision factors in §14.804, but could be related to the conservation of resources (already discussed above) or “that his testimony may create the appearance that the VA favors one litigant over another.” Id. On this point, the court repeatedly pointed out that the prescriber is being asked to provide factual testimony only. He is not being asked to serve as an expert or asked for his opinion on medical causation. Id. Moreover, a lack of interest in the litigation doesn’t “absolve” a witness of providing evidence. If it did, we’re sure private practitioners would turn down requests to testify all the time. The VA prescriber is no different than any other neutral, disinterested witness and his testimony is required only to comply with a general duty to provide evidence. Id. at *19-20.

The court’s reasoning would seem to apply to almost any prescribing testimony sought from a VA employee. If appropriately limited in scope to only factual evidence concerning the treatment of the plaintiff, the prescription of the drug, and the doctor’s knowledge of its risks and benefits, the factors for disallowing the deposition do not seem to apply – or are certainly heavily outweighed by the need for the evidence which cannot be obtained from any other source. We haven’t done a search for other Touhy decisions related to prescribers (maybe we will), but we certainly intend to add a cite to this decision to the next Touhy request we send to the VA.


This is our quasi-annual update to our cheat sheet about ediscovery for defendants.  Essentially that means using discovery to obtain access to what plaintiffs have said about themselves, and their supposed injuries, on social media.  Such material can be critical to defeating a plaintiff’s case. See Zamudio-Soto v. Bayer Healthcare Pharmaceuticals, Inc., 2017 WL 386375, at *11 (N.D. Cal. Jan. 27, 2017) (summary judgment on statute of limitations granted because plaintiff’s “Facebook post is even more indicative of suspicion [of causation]” than evidence that sufficed to defeat the discovery rule in binding Ninth Circuit decision).

However, we once again implore defendants – be reasonable.  Don’t do what we complain about the other side doing.  Don’t make unbounded requests for all social media at all times about everything.  Having just read a bunch of ediscovery cases about social media, we can state with confidence that such open-ended discovery is the quickest way to make bad precedent, the kind we don’t put on our cheat sheets, in this area.

Since discovery issues involving social media can arise in a many types of non-drug/device litigation – and even outside of personal injury altogether (think employment-related suits, for one thing) – this is a different kind of cheat sheet.  Instead of collecting cases as they come down via our weekly prescription medical product-related searches, we have to go out and research this issue specifically.  We’re lazy, so that doesn’t happen more than once a year or so.  The summaries below have been added to the cheat sheet itself, but we’re presenting them here as well.  As always with cheat sheets, we compile only those favorable to our side, which means those cases that allow all, or substantially all, of the discovery being sought.

  • Baxter v. Anderson, 2016 WL 4443178 (Mag. M.D. La. Aug. 19, 2016). Ordering plaintiff to identify every social networking website used or accessed since her accident, and where she posted photographs or other information, as well as usernames and the last date of access. Plaintiff must also produce all postings, including photographs, since the accident about the claims and defenses of the litigation, as well as postings about her alleged physical injuries and her physical capabilities.
  • Zamora v. GC Services, LP, 2016 WL 8853096 (Mag. W.D. Tex. Aug. 19, 2016). Plaintiff ordered to respond to discovery demand for all social media postings, recordings, and text messages, that concern the factual allegations plaintiff is making in the lawsuit.
  • McDonald v. Escape the Room Experience, LLC, 2016 WL 5793992 (Mag. S.D.N.Y. Sept. 21, 2016). Motion to compel granted ordering plaintiff to produce postings about plaintiff’s socializing, her attendance at parties or other social outings, and her participation in performances or other employment activities. Plaintiff’s production must include her complete postings, during the relevant time period, on any electronic social media or internet sites, including dating sites.
  • Jacquelyn v. Macy’s Retail Holdings, Inc., 2016 WL 6246798 (Mag. S.D. Ga. Oct. 24, 2016). No threshold showing is necessary before a defendant can seek discovery of social media evidence. Such a rule would shield from discovery Facebook users who do not share information publicly. Where a plaintiff puts physical condition and quality of life at issue, Facebook postings reflecting physical capacity and inconsistent activities are relevant and discoverable. Plaintiffs must produce: (1) all photographs posted by plaintiffs or in which they are tagged; (2) all comments to those photographs; (3) all posts by plaintiffs relating to activities in which plaintiffs contend they could not participate due to the incident; and (4) any posts referencing their claimed injuries, damages, or loss of enjoyment of life since the incident.
  • Scott v. United States Postal Service, 2016 WL 7440468 (Mag. M.D. La. Dec. 27, 2016). Where plaintiff has put her physical condition and activities at issue by filing a lawsuit, social media concerning those matters is discoverable. Defendant came forward with evidence that relevant social media existed. Plaintiff can also be required to identify all social media used since the accident and all postings related to any type of physical or athletic activities since the accident. To ensure completeness, plaintiff must retain historical data for all social media and review for responsive information. If such information is unavailable, plaintiff must describe the steps she took to locate and review responsive information.
  • Brown v. City of Ferguson, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017). Social media discovery is no different than any other discovery. Social media is neither privileged nor protected by a right of privacy. Plaintiffs must produce all social media content with any relevance to the case, for five years prior to the incident, including private messages sent through Facebook messenger.
  • Gee v. Citizens Insurance Co., 2017 WL 694711 (Mich. App. Feb. 21, 2017) (unpublished). Affirming dismissal of plaintiff’s complaint as a sanction for deliberately deleting social media information to evade discovery.
  • Gordon v. T.G.R. Logistics, Inc., ___ F. Supp.3d ___, 2017 WL 1947537 (D. Wyo. May 10, 2017). Plaintiff required to produce all social media history about her significant emotional turmoil, any mental disability or ability, or significant events which reasonably could result in emotional distress. Plaintiff also required to produce all Facebook postings which reference the accident, its aftermath, and any of her claimed physical injuries. Plaintiff must produce Facebook history and photos which relate or show her level of activity after the accident. Pre-accident social media need not be produced without a showing of relevance.
  • Matthews v. J & J Service Solutions, LLC, 2017 WL 2256963 (Mag. M.D. La. May 23, 2017). Plaintiff ordered to comply with document requests for all social media communications with defendant’s current or former employees and for archived Facebook material. Social media is discoverable.

These case have also been added to the cheat sheet itself, where we have collected over 100 favorable ediscovery for defendant cases that go back over a decade.