United States: 2016 Updates To Ediscovery For Defendants Cheat Sheet

We've been remiss in updating our cheat sheet devoted to ediscovery for defendants. Because of the broad nature of the topic – these cases can and do arise in a wide variety of non-drug/device contexts – we have to research them separately to find what we need. It's been two years since we last updated, and we just did it now. The new decisions are below, and every one of them either allows access to a plaintiff's social media activity or imposes sanctions on plaintiff for resisting such discovery.

Except for one. We've also included Facebook, Inc. v. Superior Court, 192 Cal. Rptr. 3d 443 (Cal. App. 2015), a third-party social media subpoena case. Facebook is included because the California Supreme Court granted review at the end of 2015 (so the opinion itself has been depublished), and whatever that court ultimately has to say about ediscovery of social media is likely to be very important.

We have a few other comments from just having reviewed a large number of social media discovery cases. Since this is a cheat sheet, we only collect the good cases – because we don't believe in doing the other side's research for them, these are comments primarily about cases that we haven't included. First, defendants would be well advised not to make broad requests for social media discovery without being able to back them up with something more solid than suspicions. Increasingly, blanket social media discovery demands succeed only when based on a plaintiff's contradictory public social media evidence or else indications of attempts to delete or otherwise hide social media activity. Our word to the wise, "investigate." Evidence of plaintiff-side perfidy is often not hard to find. Second, consider adding reasonable time, subject matter, and other limits to discovery requests suggested by the nature of the case. If plaintiff's business-related activities aren't relevant, exclude them from the request. We'd like your case to go on our cheat sheet.

Finally, a defendant without hard evidence might want to start with less intrusive discovery. Rather than asking for everything at once, take a page from defense-side discovery experts and consider proposing some kind of sampling – one out of every ten (or twenty) posts – as a more modest opening position. Active social media pages, the kinds most likely to produce useful information, typically have thousands of entries. If there's really something worthwhile lurking in a plaintiff's social media, sampling should reveal it, and will seem more reasonable to the court. Once relevant evidence can be demonstrated, more thorough discovery can follow.

In any event, with those observations, here is the latest favorable set of cases in which defendants have successfully engaged in discovery of plaintiffs' electronic activities:

• Federico v. Lincoln Military Housing, LLC, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014). Plaintiffs were extensive social media users. Defendant's preservation letter should have led them to preserve their social media activity and be prepared to produce it. Plaintiffs were either poorly instructed or deliberately dilatory in their obligations to search for and produce responsive media. However, since most material was ultimately produced and was not of great importance, only monetary sanctions are appropriate.
• Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, 2015 WL 254633 (E.D. La. Jan. 20, 2015). After lying about having social media accounts, plaintiff must produce the entire account. A cursory in camera review demonstrates the presence of considerable discoverable information. A deactivated Facebook account can easily be reactivated at any time, as plaintiff in fact did. Defendant is entitled to explore plaintiff's deactivation and reactivation of the account.
• Gonet v. Private Island Entertainment, LLC, 2015 WL 505138 (N.Y. Sup. Feb. 3, 2015). Public Facebook conversations contradicting plaintiff's allegations established a factual predicate warranting discovery of plaintiff's social media accounts.
• D.O.H. v. Lake Central School Corp., 2015 WL 736419 (N.D. Ind. Feb. 20, 2015). Sanctions, including taxation of costs, imposed on plaintiff for violating social media discovery order (see above at 2014 WL 174675). Plaintiff must produce a log of all social networking information withheld for relevance or privilege reasons.
• Melissa "G" v. North Babylon Union Free School Dist., 6 N.Y.S.3d 445 (N.Y. Sup. March 18, 2015). Photographs from plaintiff's public Facebook pages showed her engaged in recreational activities inconsistent with her claimed condition established a factual basis for discovery of private social media activities. Plaintiff's counsel shall review all posts for relevance.
• Gonzalez v. City of New York, 16 N.Y.S.3d 792 (table), 2015 WL 2191363 (N.Y. Sup. May 4, 2015). Defendant established, from plaintiff's public posts, a factual predicate to receive discovery of plaintiff's social media accounts. The Court will inspect in camera copies of all status reports, e-mails, photographs, and videos posted on plaintiff's social media sites since the date of the subject accident to determine their relevance.
• Tuzzolino v. Consolidated Edison Co., 2015 WL 2412374 (N.Y. Sup. May 21 2015). Plaintiff compelled to provide authorizations for full access to his Facebook account by presence of public Facebook pictures contrary to his claims.
• Johnson v. BAE Systems, Inc., 106 F. Supp.3d 179 (D.D.C. May 27, 2015). Plaintiff sanctioned for spoliation of social media records. Adverse inference, issue preclusion, and taxation of costs.
• Kaur v. New York City Health & Hospital Corp., 2015 WL 3792662 (N.Y. Sup. May 29, 2015). Posting of photographs and comments on a public social media site makes them fair game for discovery. Plaintiff shall provide the necessary authorizations.
• Spearin v. Linmar, L.P., 11 N.Y.S.3d 156 (N.Y. App. Div. June 15, 2015). Defendant entitled to discovery through in camera review of all plaintiff's post-accident Facebook postings for identification of information relevant to his alleged injuries.
• Rivera v. A. L. Bazzini Co., 2015 WL 4993606 (N.Y. Sup. July 20, 2015). Plaintiff shall produce to defendant all business-related content contained on social media websites, and any deleted material. Any personal content shall be provided to the court for in camera review.
• Farley v. Callais & Sons LLC, 2015 WL 4730729 (Mag. E.D. La. Aug. 10, 2015). Plaintiff must turn over all social networking site information to her counsel, with completeness certified under oath. Plaintiff must produce to defendant all postings and photographs that involve: the accident, physical injuries or emotional distress caused by the accident and any treatment received, and potential alternative sources of physical injury or emotional distress. Plaintiff must also turn over all posts and photographs inconsistent with her claims or claimed injuries.
• A.D. v. C.A., 16 N.Y.S.3d 126 (N.Y. Sup. Aug. 13, 2015). In custody dispute, former spouse's social media activity for the relevant period is discoverable to determine whether she spent as much time with the child as she claims during that period. She must take steps to produce printouts of Facebook postings depicting or describing her whereabouts. For in camera review, spouse shall swear to the completeness of the production and provide the court with access to her Facebook account.
• Peterson v. Northeastern Local School Dist., 2015 WL 5013360 (Mag. S.D. Ohio Aug. 25, 2015), adopted, 2015 WL 5793944 (S.D. Ohio Sept. 30, 2015). Plaintiff in employment action must produce Facebook postings, emails, voicemails, and texts from the time of the incident at suit.
• Facebook, Inc. v. Superior Court, 192 Cal. Rptr. 3d 443 (Cal. App. Sept. 8, 2015), review granted, 362 P.3d 430 (Cal. Dec. 16, 2015). Criminal subpoena for social media records does not violate Stored Communication Act.
• EEOC v. CollegeAmerica Denver, Inc., 2015 WL 5535192 (D. Colo. Sept. 21, 2015). Plaintiff required to produce social media postings of key witness about several topics for a specific time period. Evidence is relevant to consumer expectation and impeachment.
• Appler v. Mead Johnson & Co., 2015 WL 5615038 (S.D. Ind. Sept. 24, 2015). Except for certain specific categories, discovery of Facebook activity generated by plaintiff is generally reasonable. Social networking is neither privileged nor private. Plaintiff shall produce everything she posted on any social networking site regarding the defendant and its present or former employees. Plaintiff shall also produce her entire Facebook page, except for certain specified, largely financial, topics.
• Lucci v. Cabrera, 2015 WL 7455479 (N.Y. Sup. Nov. 12, 2015). Plaintiff's posting of a Facebook photograph that contradicted his allegations concerning his physical condition provided the necessary factual predicate for discovery of plaintiff's private social media activity.
• Fox v. Pittsburg State University, 2015 WL 7572301 (D. Kan. Nov. 24, 2015). Plaintiff's activity on social media sites may lead to relevant information regarding Plaintiff's claims. A five year time frame for production is reasonable. Responsive material encompasses social media postings indicating sources and/or instances of stress, anxiety, depression, loss of sleep, and/or embarrassment.
• Krayzel v. Roberts, 2015 WL 9320296 (Pa. Super. Dec. 22, 2015) (memorandum). Cross-examination of plaintiff with a social media statement indicating that he hoped to profit from litigation was proper.
• Impson v. Dixie Electric Membership Corp., 2015 WL 9413122 (M.D. La. Dec. 22, 2015). Plaintiff must produce social media postings and emails concerning the claimed accident and her damages and injuries. Social media is discoverable and privacy settings do not matter.
• Roberts v. Clark County School Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016). Plaintiff must identify all of the social media sites on which he has had an account from the event triggering the litigation to the present. Plaintiff's counsel must review the account contents and produce anything referencing the litigation, the underlying events, plaintiff's state of mind, emotional or physical responses to these events, and about his treatment by the defendant.
• Anderson v. Centraarchy Restaurant Management Co., 2016 WL 316851 (N.D. Ga. Jan. 26, 2016). Plaintiff held in contempt for avoiding social media discovery. Defendant entitled to reasonable attorney's fees and expenses, and to redepose witnesses. Because the material has been produced, albeit belatedly, dismissal is not appropriate at this time.
• Silk v. Bowling Green State University, 2016 WL 2771165 (Ohio Ct. Cl. Jan. 28, 2016). Plaintiff's social media activity is discoverable. Plaintiff may not unilaterally decide which posts are relevant and which are not. Admissibility will be determined later.
• Lewis v. Bellows Falls Congregation, Inc., 2016 WL 589867 (D. Vt. Feb. 11, 2016). Plaintiff's social media is discoverable. Screen shots insufficient. Counsel shall review the entire account and produce relevant material, including: (1) references to the defendants, sexual or other abuse, emotional distress, mental health, treatment, alternative potential stressors, emotions, feelings, and mental state; and (2) photographs or videos depicting plaintiff and her activities. Produced materials shall not be redacted.
• Rhone v. Schneider National Carriers, Inc., 2016 WL 1594453 (E.D. Mo. April 21, 2016). Plaintiff shall produce a complete list of her social media accounts during the requested time periods. Plaintiff shall provide a "Download Your Info" report from her Facebook account for the period after the date of the accident, given that defendant's independent examination of public pages has uncovered relevant evidence.
• Gondola v. USMD PPM, LLC, 2016 WL 3031852 (N.D. Tex. May 27, 2016). Social networking is discoverable and not privileged. Defendant entitled to information, messages, and postings on social networking sites relevant to the claims and defenses to plaintiff's wrongful termination claims.
• Waters v. Union Pacific Railroad Co., 2016 WL 3405173 (D. Kan. June 21, 2016). Defendant entitled to discovery of plaintiff's social media account names as well as postings from the dates he missed work. Plaintiff put his emotional state at issue.
• Edwards v. City of Bossier City, 2016 WL 3951216 (W.D. La. July 20, 2016). Plaintiff must produce social media posts during the relevant period until the present that pertain to his alleged contact with the defendant and his subsequent loss of his job.

This article is presented for informational purposes only and is not intended to constitute legal advice.