This post was actually written by Bexis. His password expired over the weekend and he found himself locked out, so we have posted it for him:
It's been a while. We have update our cheat sheet devoted to ediscovery for defendants differently than most of our other cheat sheets and scorecards. The topic of discovery of plaintiffs' social media is broad - such cases arise in a wide variety of non-drug/device contexts - other personal injury, employment, civil rights, occasionally even criminal litigation. So we can't rely on our various automatic Westlaw/Lexis searches to bring the relevant cases to us. Thus we must research this topic affirmatively to find what's out there.
That means extra work for us, and recently we've been lax in this area. But we finally got around to it. So below (and also added to the cheat sheet itself) are our latest additions, all of which are: (1) on point, and (2) favorable to our side of the "v." All of the new opinions below either allows access to a plaintiff's social media activity or imposes sanctions (often for spoliation) on plaintiff for resisting such discovery.
We also provide our usual caution about social media ediscovery for defendants. First and foremost, it's not a good idea for a defendant to make a broad request for social media discovery at the very outset of the case - send a preservation letter (or get a court preservation order) instead. Without more, courts are not impressed and are likely to treat the request as a "fishing expedition." The best time for a blanket social media discovery demand is after 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, without hard evidence of the other side's concealment, starting small, with less intrusive social media discovery is a good idea. Rather than going after everything, consult 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 (who will most likely to generate useful information) usually has thousands of posts and other types of entries. Thus, if anything exists, sampling is likely to bring it to light, and from there a defendant has grounds for seeking broader discovery.
Keeping those thoughts in mind, below are the latest favorable decisions allowing defendants to conduct ediscovery of plaintiff social media:
- Dewidar v. National Railroad Passenger Corp., 2018 WL 280023 (S.D. Cal. Jan. 3, 2018). Plaintiff's social media data was directly relevant to the claimed incident and injuries. Boilerplate objections, including privacy, disregarded.
- Stokes v. City of Visalia, 2018 WL 1116548 (E.D. Cal. Feb. 26, 2018). Postings made by Plaintiff and third parties on any social media device or social media program are permissible discovery in this action.
- Castelino v. Rose-Hulman Institute of Technology, 2018 WL 1140389 (S.D. Ind. March 2, 2018). Plaintiff ordered to produce a downloaded copy of his Facebook account. The demand is proportionate. Plaintiff put his emotional state at issue. Use of a third-party vendor to extract the data is proper.
- Thompson v. Coleman, 544 S.W.3d 635 (Ky. April 26, 2018). Proper to allow a specialist selected by defendants to inspect plaintiff's decedent's cell phone, computer, and social-media account for one year before the decedent's suicide. Defendant is entitled to discover alternative causes, and should not be limited to the period the decedent used its product. Proper to order simultaneous production. There is no privilege against discovery, and a confidentiality order has been entered. Review of irrelevant material does not preclude discovery.
- Hinostroza v. Denny's, Inc., 2018 WL 3212014 (D. Nev. June 29, 2018). Plaintiff must identify all social media platform she uses. Defendant is entitled to social media discovery from one year before the plaintiff's accident. Text messages close to the accident are also discoverable. Social networking is neither privileged nor protected by any privacy right.
- C v. Metro. Government of Nashville & Davidson County., 2018 WL 3348728 (M.D. Tenn. July 9, 2018). Plaintiffs ordered to identify all their social media platforms. Plaintiffs also ordered to produce all non-public social media content regarding the alleged incidents and for two months on either side of them.
- Bossenbroek v. HHS, 2018 WL 4790383 (Fed. Cl. Sept. 4, 2018). Production of social media is ordered to substantiate of plaintiff's injuries and their severity. No expectation of privacy in social media since, even if "private," it is shared with others.
- Connolly v. Alderman, 2018 WL 4462368 (D. Vt. Sept. 18, 2018). Plaintiff ordered to produce social photographs, videos, or documents addressing or reflecting plaintiff's ability to engage in relevant activities from the beginning of the claimed incidents to the present. Failure to comply will result in an order to produce passwords. Any privacy issues can be resolved with a confidentiality order.
- Peterson v. City of Minot, 2018 WL 5045194 (D.N.D. Oct. 17, 2018). Defendant entitled to have its expert search plaintiff's computer for relevant social media. Material will be sent to plaintiff's counsel first. If plaintiff objects, the material will be reviewed in camera by the judge to determine discoverability.
- Hayes v. HHS, 2018 WL 7049378 (Fed. Cl. Dec. 4, 2018). Plaintiff required to produce all social media postings concerning alleged pain and suffering, activities, physical capabilities, and any alternative causes. social media posts and videos are reasonably and directly relevant to establishing the severity of the ongoing injury. There is no right to privacy in social media. Social media is not similar to medical records.
- Walker v. Corizon Health, Inc., 2018 WL 6602229 (D. Kan. Dec. 17, 2018). Plaintiff's social media is relevant and discoverable. If plaintiff's social media accounts have privacy settings limiting public access, plaintiff must provide defendant with copies of any social media postings, public or private, which in any way relate to the matters involved in this lawsuit.
- Robinson v. MGM Grand Detroit, LLC, 2019 WL 244787, at *1 (E.D. Mich. Jan. 17, 2019). Plaintiff must comply with social media discovery, including from his cell phone, concerning his alleged disability, emotional damages, mitigation of wage loss. Defendant supported request with evidence that plaintiff was working out while allegedly disabled. Discovery is both relevant and proportional.
- Vasquez-Santos v. Mathew, 92 N.Y.S.3d 243 (N.Y.A.D. Jan. 23, 2019). Denial of social media discovery reversed. Where plaintiff posted photographs and other evidence of his engaging in sports and similar activities on devices, emails accounts, and social media, this material was discoverable. Private social media is discoverable where it contradicts or conflicts with a plaintiff's alleged restrictions, disabilities, losses, and other claims.
- Walmart, Inc. v. Ohler, 2019 WL 644936 (La. App. Feb. 15, 2019). Denial of social media discovery reversed. Information on social media accounts is generally discoverable. In camera review ordered to determine if information posted since the date of the accident concerns the accident or plaintiff's alleged injuries and treatment, or reflects physical capabilities that are inconsistent with the injuries allegedly suffered.
- Matter of Parks, 2019 WL 8955113 (S.D. Fla. March 22, 2019). Defendant entitled to six months of plaintiffs' social media posts, including videos and photographs, prior to the date plaintiffs first filed their claims. There is no general bar against the production of social media. The information is relevant to the injuries and damages and not burdensome to produce.
- In re Ford Motor Co. DPS6 PowerShift Transmission Products Liability Litigation, 2019 WL 3815721 (C.D. Cal. May 13, 2019). Plaintiff's counsel sanctioned for obstructing discovery into plaintiff's Twitter account on privacy grounds. A social media account, which by its nature is intended to be shared, cannot be shielded from discovery on privacy grounds.
- Herzog v. Sacko Delivery & Trucking, 115 N.Y.S.3d 616 (N.Y. Sup. May 17, 2019). Defendant entitled to plaintiff's post-accident statements and representations on social media that bear on the extent of the injured plaintiff's damages.
- Mercado Cordova v. Walmart Puerto Rico, Inc., 2019 WL 3226893 (D.P.R. July 16, 2019). Plaintiff sanctioned with an adverse spoliation inference for deleting a social media account.
- McLaughlin v. Bayer Essure Inc., 2019 WL 3483177 (Mag. E.D. Pa. July 24, 2019). Plaintiffs must produce responsive social media. They may do so either by reviewing and gathering social media themselves, or by providing access authorizations to defendants, subject to the right to claw back any privileged material. Adopted 2019 WL 3811907 (E.D. Pa. Aug. 13, 2019).
- Trevino v. Golden State FC LLC, 2019 WL 3892356 (E.D. Cal. Aug. 19, 2019). Plaintiffs ordered to produce records of their email, text messaging, social media activity, and phone calls made on their personal phones during the workday when they were supposed to be working.
- Soderstrom v. Skagit Valley Food Co-op, 2019 WL 3944327 (W.D. Wash. Aug. 21, 2019). Social media discovery compelled from the date the alleged events began. By filing suit plaintiffs put their mental and emotional states at issue. Social media activity is not protected from discovery by any right of privacy.
- LaJeunesse v. BNSF Railway Co., 333 F.R.D. 649 (D.N.M. Aug. 30, 2019). Sanction of dismissal granted for plaintiff knowingly, intentionally, and willfully misrepresenting his social media use and for knowingly and willfully refusing to produce social media material.
- O'Hern v. Meech Lake General Partner LLC, 2019 WL 4410319 (Ill. App. Sept. 12, 2019). Sanction of dismissal for repeated and defiant refusal to turn over social media activity in discovery affirmed.
- Dickerson v. Barancik, 2019 WL 9903813 (M.D. Fla. Oct. 22, 2019). Social media content is generally discoverable, particularly when the plaintiff's physical condition is at issue. Plaintiff must produce all non-privileged content shared on her Facebook account from two years prior to the date of the accident to the present.
- Bruner v. City of Phoenix, 2020 WL 554387 (D. Ariz. Feb. 4, 2020). Plaintiffs sanctioned for deleting social media entries and an entire account. Ignorance of how to go about downloading accounts is no excuse for nonproduction.
- Caserta v. Triborough Bridge & Tunnel Authority, 115 N.Y.S.3d 895 (N.Y.A.D. Feb. 18, 2020). Restrictions on defendant's discovery of plaintiff's social media vacated as unnecessarily restrictive. Discovery of photographs, videos, and other social media postings regarding plaintiff's social and recreational activities that might contradict his claims of disability, is relevant, useful, and reasonable.
- Rodriguez-Ruiz v. Microsoft Operations Puerto Rico, L.L.C., 2020 WL 1675708 (D.P.R. March 5, 2020). Discovery of plaintiff's social media profile(s) is appropriate. Plaintiff lacks a right to privacy in the content of his social media profiles. Social media activity is relevant to assertions of emotional distress.
- Aspin v. Allstate Property & Casualty Insurance Co., 2020 WL 1523250 (W.D. Wash. March 30, 2020). Plaintiff must provide access to his social media accounts or to the devices through which the requested information can be found. If plaintiff cannot download and produce the requested emails, text messages, social media posts, photos, and/or videos himself, he shall provide whatever access is necessary so that defendant can locate and copy the relevant information.
- Crossman v. Carrington Mortgage Services, LLC, 2020 WL 2114639 (M.D. Fla. May 4, 2020). Plaintiff's social media, including her Facebook and Instagram accounts, relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered. A confidentiality order eliminates any privacy concern.
- Tate v. Zaleski, 2020 WL 3404739 (S.D. Miss. June 19, 2020). Plaintiffs ordered to produce a downloaded copy of their Facebook accounts. Plaintiffs also ordered to allow a qualified, neutral expert to search their personal cell phones for communications responsive to defendants' discovery.
- Denson v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 2020 WL 3507410 (Mag. D. Utah June 29, 2020). Given that some relevant evidence in plaintiff's possession has gone missing, defendant is entitled to access to plaintiff's electronic devices and cloud based accounts to create a mirrored image. Access shall be by an independent third-party expert to ensure that irrelevant materials remain private. Plaintiff ordered to turn over the necessary passwords.
This article is presented for informational purposes only and is not intended to constitute legal advice.