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.

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.

Bexis recently attended the “Emerging Issues in Mass-Tort MDLs Conference” sponsored by Duke Law School (those of us from Philly remember Duke as part of “Black Saturday” back in 1979).  Several panels discussed various issues relating to MDLs including using early, issue-specific fact sheets, which Bexis advocated be considered amended pleadings subject to Rule 8 and TwIqbal, as a winnowing tool against the hordes of meritless plaintiffs that persist for years in MDLs involving prescription medical products.  Another discussion, about Lone Pine orders, produced (among other things) a great deal of disagreement as to what exactly a “Lone Pine order” actually requires.

By the end of it all, Bexis was moved to make a modest proposal. A lot of the problem – both with the use of plaintiff questionnaires/fact sheets and with Lone Pine orders – is definitional.  There is no set standard for either of these supplemental discovery procedures.  What’s really needed is the type of clarity that can only be brought about by an actual rule of civil procedure.  Thus, Bexis proposed (and proposes here) creation of a new Federal Rule of Civil Procedure governing “optional discovery methods” that allow judges to use defined procedures for party questionnaires/fact sheets (not necessarily plaintiffs in all cases) and Lone Pine orders would set standards, as well as several other discovery techniques that we think should be defined and allowed by a formal rule.

The other techniques Bexis would include in a new rule are: (1) authorizations for release and production of medical and other relevant records in the hands of third-parties; (2) informal interviews with treating physicians; (3) predictive coding in ediscovery; and (4) provision of blood or tissue sampling for genetic testing.  The first two are traditional discovery techniques that suffer (like Lone Pine and questionnaires) from wildly divergent standards and could benefit from the uniformity imposed by a rule – as well as a leveling of the plaintiff/defendant playing field.  The latter two are innovative discovery techniques that are driven by technological advances.  Predictive coding (as we discussed in the links above) could both cheapen and sharpen electronic discovery.  Genetic testing, reliant on DNA and other molecular sequencing techniques that have become dramatically cheaper and more accurate over the past decade, will become more and more necessary in toxic exposure cases of all kinds as causation of more and more medical conditions, such as mesothelioma and other cancers, is determined to vary by individualized genetic differences (also discussed in our prior link).

As illustrious as the attendees of the (invitation only) Duke Conference are, that is not the forum for actually amending the Federal Rules of Civil Procedure. That honor goes to Discovery Subcommittee of the Federal Judicial Conference’s Standing Committee on Rules of Practice and Procedure.  Having successfully completed its project on scope and sanctions that resulted in the amendments that became final in December, 2015, that Subcommittee might be looking for something else to do.  Maybe it could see fit to take up some or all of Bexis’ modest proposal.