Judge Scolds Litigant For Making Facebook Account “Private” During Litigation–Thurmond v. Bowman

Screen Shot 2016-05-16 at 7.06.26 AMThis is a social media evidence ruling. Plaintiff filed a Fair Housing Act lawsuit alleging that a prospective landlord decline to rent an apartment after learning that two of plaintiff’s children would be living with her. The lease denial allegedly caused emotional harm to plaintiff.

Defense counsel flagged the issue of plaintiff’s social media accounts early, warning plaintiff’s counsel that plaintiff’s social media accounts would be scrutinized and that she should be warned about “spoilage” [sic]. In the context of another motion, plaintiff acknowledged to the court that she had Facebook and Instagram accounts and that these accounts were “private”.

Shortly after this filing, defense counsel sought sanctions for spoliation and an injunction prohibiting plaintiff from accessing her social media accounts. [Spoiler alert: the court denies the requested injunction.] In a supporting declaration, defense counsel averred that he had viewed plaintiff’s social media accounts and observed posts “disappearing from view”. In defendant’s view, these posts were relevant to plaintiff’s claims for emotional distress and might counter-indicate that she suffered emotional distress as a result of being unable to rent the apartment in question. The posts also allegedly demonstrated that plaintiff was not separated from her family, which was the supposed cause of her emotional distress.

The court holds an evidentiary hearing at which two lawyers and the plaintiff testify. According to one of the lawyers for the defense, she accessed plaintiff’s accounts at one point despite not being “friends” with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion. Counsel for plaintiff offered to provide to defense counsel a copy of plaintiff’s entire Facebook account.

The court continued the evidentiary hearing several months later and lawyers (and staff) for both sides further testified. One of the witnesses, a legal assistance worker, testified that he met with plaintiff in his office, got access to her Facebook account, and printed the material that was contained in the account. (This took approximately three days!) In response, one of the defense lawyers reviewed the posts submitted by plaintiff and testified that they did not appear complete. This lawyer said she saved screenshots when she initially reviewed plaintiff’s Facebook profile and upon comparing these screenshots to what was ultimately provided, she was able to identify a few posts that were missing.

The court says litigants have a duty to preserve evidence, including social media evidence. While the contours of preservation in the context of social media evidence are unclear at best (and raise “interesting and complex issues”), the court says that this is not determinative. Even if such a duty exists, it was not knowingly violated by plaintiff:

Despite defendants’ contentions that Thurmond engaged in widespread deletion of posts from her Facebook account, the evidence adduced during the evidentiary hearing demonstrates that the majority of Thurmond’s posts remain accessible on her account, have not been deleted, but were simply hidden from defendants’ view due to an apparent modification of Thurmond’s security settings. The reasonable conclusion from the evidence adduced at the hearing is that Thurmond’s Facebook account was publically accessible until approximately May 15, 2015 when Thurmond adjusted the privacy settings to make the account accessible only to her Facebook “friends,” an adjustment that removed postings from public view but did not delete them. Thurmond has now produced hundreds of postings from her Facebook account that were posted between October 2012 and June 2013. That period of production spans a few months prior to the alleged discrimination through six months after the incident. Although [defense counsel] testified generally that she believes that Thurmond’s printed posts for a few of the months during that period contain substantially fewer posts than she saw in December 2014, she was able to identify only three particular posts described supra.

The court also says that the entirety of plaintiff’s Facebook account would not be relevant anyway. (This part of the ruling contains a good bunch of cites to cases dealing with this issue.) The court can’t think of possible relevance to the three deleted posts. Defendant does not argue a credible basis for relevance. And the court says that even assuming there was spoliation, the lack of relevance of the posts in question dooms defendant’s request for sanctions.

The court also rejects defendant’s request to disqualify plaintiff’s counsel because the lawyer himself was subject to sanctions for failing to pass on and enforce plaintiff’s duty to preserve, and the specter of possible liability for sanctions puts the lawyer at odds with the plaintiff. The court predictably rejects this request.

Finally, while the court rejects all of defendant’s requests for relief (including the request for injunctive relief prohibiting plaintiff from accessing her account), the court does chide plaintiff for her alteration of her Facebook account settings:

By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view. Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.


Yowza, kudos to the judge for dealing with what looks like a pretty difficult discovery dispute–a classic type of discovery dispute that drags everyone down. I cannot believe the amount of time and energy the lawyers spent on bringing these issues before the court (several motions, multiple days of evidentiary hearings, post hearing filings). This looks like an exceedingly patient judge. I would have denied everyones’ requests with a one line order, with perhaps an additional sentence about how it was probably not productive or cost effective for the lawyers to have spent this much time and money on such a menial issue (I would have instructed the lawyers to send the order to their clients as well). [Eric’s comment: I like the sound of “Judge Balasubramani.”]

The ruling still has some interesting tidbits. That the lawyers were snooping around plaintiff’s accounts is interesting; and since the accounts were allegedly public, it did not cause ethical issues, but that’s something I would be worried about (inadvertently contacting plaintiff while in the process of investigating). The court does not mention this but does allude to the fact that defendant could have obtained the relevant evidence through discovery requests, which they had not propounded.

The court’s treatment of the privacy changes is also interesting. I have long argued that Facebook privacy settings are and always have been confusing, and from this perspective it would not be very culpable for someone to have “accidentally” altered their settings. The court does not take this approach, instead holding plaintiff responsible for whatever alteration occurred. Perhaps the court saw something in the evidentiary hearing that caused it to come to this conclusion. Or maybe it’s a case of a party or witness always being held responsible for the privacy implications of their account settings. (We’ve seen this in speech or Facebook termination cases for example, where plaintiffs unsuccessfully argue that they “tried” to limit the audience for their social media statements.)

Finally, the relevance ruling is good. Parties have an outsized view of the relevance of social media posts, and the court clearly did not see the same potential for relevance in the missing posts as the defendant did. I am somewhat surprised this did not color the court’s overall conclusion on the motion, but it was still refreshing to see the court flag this.

This is a good cautionary tale for litigants about tinkering with their social media settings while litigation is pending. We’ve seen other efforts with far more disastrous results, but this is still a good reminder: change your settings at your peril.

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

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