Court Orders Production of Five Years’ Worth of Facebook and MySpace Posts – Thompson v. Autoliv
[Post by Venkat Balasubramani]
Thompson v. Autoliv ASP, Inc., et al., 09-cv-01375-PMP-VCF (D. Nev.; June 20, 2012)
Another discovery dispute over social networking evidence.
Thompson was involved in an automobile accident and suffered serious injuries. She asserted that she suffered a range of injuries and damages, including: ongoing medical treatment, therapy, a lost scholarship, the loss of ability to play the violin, emotional distress, depression, emotional volatility. Among other defendants, she sued the seatbelt and airbag manufacturers.
One of the defendants said it obtained wall posts and photographs from plaintiff’s “public Facebook profile” that depicted things including the following:
(i) Plaintiff’s ability to swing on a swing set, dance, and engage in water sports; (ii) Plaintiff’s ability to care for children and pets; (iii) Plaintiff’s social activities, including consumption of alcohol, bowling with friends, and late night partying; (iv) Plaintiff’s sleeping habits; (v) Plaintiff’s personal relationships; (vi) Plaintiff’s post accident physical recovery; (vii) Plaintiff’s employment; (viii) the effect of Plaintiff’s medications on her emotional, physical and sexual habits; (ix) offers by Plaintiff to share medications with others; and (x) Plaintiff’s enrollment in institutions of higher education.
Defendant sought everything from plaintiff’s Facebook and MySpace account (wall posts, photographs, and messages from April 2007 to the present). In response, plaintiff provided a redacted copy of her Facebook account history and a few photographs. Defendant also sought to require plaintiff to produce her account for in camera inspection.
The court rejects the request for in camera inspection, but it says that based on the photographs and materials defendant already obtained, the requested materials from plaintiff’s Facebook account are clearly relevant. The court also notes that there is no applicable privilege. Nevertheless, the court acknowledges that litigation does not permit “complete and open public display of plaintiff’s life.” The court says that it’s appropriate to balance defendant’s need for the information against plaintiff’s rights under Rule 26 (to be free from annoyance, embarrassment, oppression, or undue burden in discovery).
The court orders plaintiff to disclose (to defense counsel only) all information from her Facebook and MySpace accounts in an electronic storage device along with an “index of redacted social networking site communications.” If defense counsel believes that material is relevant and but hadn’t been previously provided, defense counsel should provide a list to plaintiff of such materials. If plaintiff disagrees and thinks those materials should not be discoverable, then the parties shall submit the material to the court for review along with their arguments as to discoverability. Defense counsel shall return the storage device and not disclose or copy the material.
Virtually every court to have addressed the issue agrees that something is not off-limits just because it’s posted to Facebook and also that a party seeking discovery of social networking information should not be allowed to “rummage around” in the other party’s account. Here there was a threshold showing of relevance, interestingly through access of publicly available photos and posts, and the issue in front of the court was a logistical one. Courts have tackled this logistical issue in a variety of ways, ranging from offering to friend the party whose account is at issue to requiring the party to turn over the passwords to opposing counsel. The court’s solution in this case seems like a preferable method, although there are two drawbacks: (1) the defense lawyer is not supposed to turn over any information to the client, but lawyers and clients sometimes do not respect these boundaries in practice; and (2) the lawyer may be exposed to information that he or she would not appropriately have access to in discovery which may provide an unfair advantage with respect to categories of embarrassing or private information that may otherwise be off-limits.
I still think some sort of “index” is the best route, where the party whose information is sought produces something similar to a privilege log, and the party seeking discovery can argue why certain entries or photos should be produced.
[NB: I wasn't entirely clear on what the court meant by the "index of redacted social networking communications."]
Added: Bruce Boyden (@ Madisonian) has a post “detailing exactly what’s wrong with an order compelling production of an entire social networking account. . . .” (“The Proper Procedure for Facebook Discovery, Part I“). Also, Molly DiBianca has a post on a different Facebook discovery dispute (Trail v. Lesko): “Access to a Party’s Facebook Account During Discovery.”
Other posts on social media evidence undermining a litigant’s position