Revisiting the Discoverability of Facebook Account Activity–Gordon v. TGR
The facts of this case are fairly typical. The plaintiff was hit by a truck. She sued the truck company and driver. In discovery, the defendants requested that she “download and produce an electronic copy of your Facebook account history” covering both before and after the accident. She says she has already “produced the information from her Facebook accounts that references the accident or her injuries.” Defendants aren’t satisfied.
Social media evidence can be a treasure trove for litigants, but there’s no optimal way to balance all of the competing interests. After some troubling initial rulings, courts have become more circumspect about allowing a litigant to get a litigant’s entire log of Facebook activity. It may be technologically easy to generate the Facebook activity log, but that does not end the inquiry:
Social media presents some unique challenges to courts in their efforts to determine the proper scope of discovery of relevant information and maintaining proportionality. While it is conceivable that almost any post to social media will provide some relevant information concerning a person’s physical and/or emotional health, it also has the potential to disclose more information than has historically occurred in civil litigation. While we can debate the wisdom of individuals posting information which has historically been considered private, we must recognize people are providing a great deal of personal information publicly to a very loosely defined group of “friends,” or even the entire public internet. People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as to all disclosures, conversations or observations. Now far more reliable disclosures can be obtained with a simple download of a social media history. A few clicks on the computer and you shortly have what can consist of hundreds of pages of recorded postings and conversations of a party. There can be little doubt that within those postings there will be information which is relevant to some issue in the litigation. It is equally clear that much of the information will be irrelevant.
Just because the information can be retrieved quickly and inexpensively does not resolve the issue. Discovery can be burdensome even as it is inexpensive. Courts have long denied discovery of information which was easy to obtain, but which was not discoverable….
The Defendant correctly observes that there would be very little time or expense involved in the initial production of Plaintiff’s Facebook history. That’s true on the front end. The problem is that such vast information has the potential to generate additional discovery or impact trial testimony. It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims. That being said, Defendant has a legitimate interest in discovery which is important to the claims and damages it is being asked to pay. Information in social media which reveals that the plaintiff is lying or exaggerating his or her injuries should not be protected from disclosure. Courts must balance these realities regarding discovery of social media and that is what most of the courts which have addressed this issue have done….
Granting access to Plaintiff’s entire Facebook history would provide minimal relevant information while exposing substantial irrelevant information. As such the discovery would exceed the proper limits of proportionality.
The court orders the following discovery:
1. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which relate to Plaintiff’s significant emotional turmoil, any mental disability or ability, or relate significant events which could reasonably be expected to result in emotional distress.
2. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which address or relate to the accident and its aftermath or any of her resulting physical or emotional injuries.
3. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which relate or show the Plaintiff’s level of activity.
In a footnote, the court adds: “The Plaintiff is to err on the side of disclosure and if the Plaintiff is uncertain, the relevant documents shall be provided to the Court for in camera review.” Note the court does not distinguish the different privacy settings for Facebook posts. For example, the court could have been more generous with the Facebook posts set to “public” than others, but private and public posts are treated the same.
So who won this discovery ruling? The defendants have to be irritated that they will get a filtered view of the Facebook account, with the potential for evidence omission or suppression. The defendants also didn’t get a chance to crack into the Facebook account pre-accident, which could theoretically have led to some damning before-and-after comparisons or clues about preexisting conditions. On the other hand, the court ordered the plaintiff to produce a wide range of post-accident material, and the footnote makes it clear that the court will be angry if the plaintiff gets caught trying to be cute. So it wouldn’t surprise me if the plaintiff decides to produce all post-accident Facebook material rather than try to engage in grammatical parsing of the court’s order. So it’s possible/probable that carefully worded discovery requests, offering the veneer of precision, will reach about the same outcome as having complete access to the account log.
Venkat’s comments: I agree this court, like most others before it, does not offer any silver bullets to resolving social media discovery disputes. The court does identify a few interests of those resisting broad discovery requests that courts typically have not focused on:
The problem is that such vast information has the potential to generate additional discovery or impact trial testimony. It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.
Neither of these seem particularly new to social media evidence. The same could be said of email evidence. The court’s resolution is similar to how courts deal with e-discovery: come up with relevant parameters and then rely on the party producing the discovery to filter and generate results.
Case citation: Gordon v. T.G.R. Logistics, Inc., 2017 WL 1947537 (D. Wy. May 10, 2017)
Some related posts:
* Judge Scolds Litigant For Making Facebook Account “Private” During Litigation–Thurmond v. Bowman
* ‘Deactivated’ Facebook Account Is Discoverable In Litigation
* Are Facebook Photos More Discoverable In Litigation Than Other Social Media Content?
* Emotional Distress Claim Doesn’t Support Fishing Expedition for Social Media Evidence
* Facebook Password Exchange Between Parties to Litigation Results in Spoliation Debacle – Gatto v. United Airlines
* Social Media Evidence Roundup – January 2013 Edition
* Virginia Supreme Court: Litigant Who “Cleans up” His Facebook Page May Be Sanctioned
* Court Orders Password Turnover and In Camera Review of Social Media Accounts – EEOC v. Original Honeybaked Ham Co.
* Social Media Discovery Case Update and Tips for Those Seeking Discovery
* A Dark Side of Data Portability: Litigators Love It
* Social Media Discovery Roundup
* Court Orders Production of Five Years’ Worth of Facebook and MySpace Posts – Thompson v. Autoliv
* Courts Continue to Grapple with Discovery Disputes Around Social Networking Evidence
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party–In re DLW
* Connecticut Supreme Court Says no Error in Admission of Facebook Photos at Probation Hearing — State v. Altajir
* Facebook Evidence Suppressed in Skater Brawl Prosecution–People v. Bignone
* Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant — Largent v. Reed
* Insurance Company’s Request to Compel Production of Facebook Password Fails (with Costs)–Chauvin v. State Farm Mutual
* Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute — Zimmerman v. Weis Markets, Inc.
* Court Conducts in camera Review of Plaintiff’s Facebook Page to Resolve Discovery Dispute — Offenback v. Bowman
* Court Denies Request for Discovery of Facebook and Twitter Account Information, Finding that the Request is a “Digital Fishing Expedition”
* Contrary LinkedIn Evidence Crushes Witness’ Testimony — Blayde v. Harrah’s Entertainment
* MySpace Profile and Photo Evidence Used to Support Conviction for “Participation in Criminal Gang Activity” — State v. McCraney
* Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition — McCann v. Harleysville Insurance
* It May be Best to Shut Down Your Facebook Account While You are on Probation — State v. Altajir
* Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway
* Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase
* Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville