Tuesday, November 22, 2011

E-Discovery For Defendants Cheat Sheet

After getting the latest favorable Facebook discovery decision in Largent v. Reed, and seeing that Largent cited to a recent New York case that we didn’t know about, we’ve come to the (probably belated) conclusion that the fast-developing area of e-discovery for defendants with respect to social media maintained by plaintiffs is worthy of a cheat sheet to keep up with the cases as they’ve come down.  So here it is – a compilation of all the favorable opinions we’re aware of concerning the right of defendants to take the offensive on e-discovery in personal injury cases, rather than merely having to grin and bear it on the receiving end.  As with our other posts of this nature, it's in purely chronological order, and we’ll update it whenever we learn of additional case law, so if you on the right side of the “v.” win something, feel free to pass it along to us.

By the way, we've cited some Canadian cases as well, because, particularly early on, they've been cited several times on this side of the border.  The citation forms may look unusual to American lawyers, but we've tried them out.  This is how they appear on WL.


  1. Torres v. Lexington Insurance Co., 237 F.R.D. 533 (D.P.R. Aug. 14, 2006).  Plaintiff sanctioned for deleting several social media web pages with information contrary to her claims.  Defendant independently discovered the information and notified plaintiff to preserve it.  Two days later it was gone.  All claims for mental anguish, to which this evidence was relevant, are dismissed.
  2. Mackelprang v. Fidelity National Title Agency, Inc., 2007 WL 119149 (D. Nev. Jan. 9, 2007). Discovery of social media is allowable, to the extent relevant to the case, but discovery should come from the plaintiff, rather than directly from My Space.
  3. Dexter v. Dexter, 2007 WL 1532084 (Ohio App. May 25, 2007). Not a discovery case, but frequently cited.  Publicly available posts on MySpace were not entitled to any reasonable expectation of privacy.
  4. Murphy v. Perger, 2007 CarswellOnt 9439 (Ont. Super. Oct. 3, 2007) (Canada).  Discovery of plaintiff’s Facebook account authorized. Social media to which many people have access has no reasonable expectation of privacy.
  5. Beye v. Horizon Blue Cross Blue Shield, 2007 WL 7393489 (D.N.J. Dec. 14, 2007). Discovery of plaintiff’s Facebook and MySpace accounts authorized.  There is no reasonable expectation of privacy in information shared with others.
  6. Leduc v. Roman, 2009 CarswellOnt 843 (Ont. App. Feb. 20, 2009) (Canada).  Refusal to allow discovery of plaintiff’s Facebook account was an abuse of discretion.  Social media are not privileged, even if restricted as “private.”  A plaintiff must identify any relevant materials posted on Facebook, public or private.
  7. Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr.3d 858 (Cal. App. April 2, 2009).  Not a discovery case, but frequently cited.  A plaintiff cannot bring an invasion of privacy action concerning republication of information that he voluntarily posted on MySpace.  There can be no expectation of privacy in publicly posted information.
  8. Bishop v. Minichiello, 2009 CarswellBC 871 (B.C. April 7, 2009) (Canada).  Discovery of plaintiff’s hard drive was proper to determine how much time plaintiff spent on Facebook.
  9. Kent v. Laverdiere, 2009 CarswellOnt 1986 (Ont. Super. April 14, 2009) (Canada).  Discovery of plaintiff’s Facebook and MySpace accounts was proper.
  10. Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009).  Subpoenas directly to Facebook, My Space, Inc., and Meetup.com were proper discovery of plaintiff’s accounts.
  11. Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009).  Discovery of plaintiff’s Facebook account was proper.  Plaintiff’s withholding of relevant information justified sanction of production of entire Facebook page.
  12. Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Sept. 21, 2010).  Discovery of plaintiff’s Facebook and MySpace accounts authorized.  Social media are not privileged, even if restricted as “private.” Social media are discoverable, and have no reasonable expectation of privacy.
  13. McCann v. Harleysville Insurance Co., 910 N.Y.S.2d 614 (N.Y.A.D. Nov. 12, 2010).  While the defendant had yet to establish entitlement to discovery of any particular item, prospective refusal to allow any discovery of plaintiff’s Facebook account was an abuse of discretion.
  14. EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. May 11, 2010).  Discovery of plaintiffs’ Facebook and MySpace accounts authorized.  Social media have no reasonable expectation of privacy.  Targeted social media discovery is not burdensome or oppressive.
  15. Barnes v. CUS Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. June 3, 2010).  Discovery of plaintiff’s Facebook account authorized.  Due to plaintiff’s intransigence, the magistrate will “friend” plaintiff and review the account for discoverable information.
  16. McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. Jefferson Co. Sept. 9, 2010).  Discovery of plaintiff’s Facebook account authorized.  There is no “social network privilege.” Social media are discoverable, and access “should be freely granted.”
  17. Sparks v. DubĂ©, 2011 CarswellNB 80 ¶¶52-58 (N.B.Q.B. Feb. 4, 2011) (Canada).  Imposing litigation hold on plaintiff to prevent deletion of Facebook information.
  18. Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. C.P. Northumberland Co. May 19, 2011).  Discovery of plaintiff’s Facebook and MySpace accounts authorized.  No privilege exists for information posted in the non-public sections of social websites.  Social media have no reasonable expectation of privacy.
  19. Offenback v. LM Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011).  Discovery of plaintiff’s Facebook account authorized. Social media are discoverable.  There is no need for judicial in camera review of social media before it is produced.
  20. Katiroll Co. v. Kati Roll and Platters, Inc., 2011 WL 3583408 (D.N.J. Aug. 3, 2011).  A party’s intentional destruction of Facebook evidence could constitute spoliation, but unintentional alterations do not.  Parties “control” their Facebook pages for purposes of discovery.
  21. Held v. Ferrellgas, Inc., 2011 WL 3896513 (D. Kan. Aug. 31, 2011).  Discovery of plaintiff’s Facebook and job search accounts authorized.  Targeted social media discovery is not burdensome or oppressive.
  22. Patterson v. Turner Construction Co., 931 N.Y.S.2d 311, 312 (N.Y. App. Div. 2011).  Affirming grant of Facebook discovery.  Social media are not privileged, even if restricted as “private.”
  23. Sourdiff v. Texas Roadhouse Holdings, LLC, 2011 WL 7560647 (Mag. N.D.N.Y. Oct. 24, 2011).  Discovery of plaintiff’s Facebook and MySpace accounts authorized.  Plaintiff's counsel must review the sites' content, including any deleted items, and turn over to the defendant all information related in any way to the plaintiff's physical or emotional condition, injuries, damages, activity level, employment, or concerning this lawsuit.
  24. Largent v. Reed, 2011 WL 5632688, slip op. (Pa. C.P. Franklin Co. Nov. 8, 2011).  Discovery of plaintiff’s Facebook account authorized.  Social media are discoverable, and have no reasonable expectation of privacy. Social media are not privileged, even if access is restricted.  The Stored Communications Act does not apply to discovery from plaintiffs.  Targeted social media discovery is not burdensome or oppressive.
  25. In re Air Crash Near Clarence Center, New York, on February 12, 2009, 2011 WL 6370189 (W.D.N.Y. Dec. 20, 2011).  Where plaintiff’s domicile is an important contested issue, discovery will be allowed into all of plaintiff’s electronic communications for a five-year period prior to the accident, including social media, text messages, emails, and instant messages, relevant to the plaintiff’s domiciliary intentions.
  26. Davenport v. State Farm Mutual Automobile Insurance Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012).  Discovery of plaintiff's social media sites allowed.  Plaintiff must produce every photograph of the her that is posted on any social media site, whether or not she posted them (that is, including “tags”).  As a practical matter, the scope of production will be limited by the "custody and control" limits on discovery.
  27. Glazer v. Fireman’s Fund Insurance Co., 2012 WL 1197167 (S.D.N.Y. April 5, 2012).  Plaintiff must produce all her LivePerson social media accounts.  Pursuant to the Stored Communication Act the court may direct plaintiff to consent to disclosure if she wants to maintain this suit.  It makes more sense to require the plaintiff, rather than the online provider, make the production.  Since plaintiff has deleted relevant information that can be restored if she opens a new account, plaintiff is directed to open a new account.  Given the relevance of the excerpts provided to the court, all chats must be produced regardless of subject matter.  All chats during the plaintiff’s employment by the defendant must be produced.  If plaintiff claims any privilege, she must submit a privilege log.
  28. Loporcaro v. City of New York, 35 Misc.3d 1209(A), 950 N.Y.S.2d 723 (table), 2012 WL 1231021 (N.Y. Sup. April 9, 2012).  Plaintiff posted information on Facebook contradicting his claims, entitling defendants to full discovery.  A person creating a Facebook account may be found to have consented to the possibility that personal information might be shared with others, notwithstanding the privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public.
  29. Thompson v. Autoliv ASP, Inc., 2012 WL 2342928 (D. Nev. June 20, 2012).  Discovery of  plaintiff’s Facebook and other social networking sites allowed.  Redaction was inappropriate.  Relevance was established by public information obtained prior to formal discovery.  Plaintiff did not claim privilege so not entitled to in camera review.  All material after date of accident was potentially relevant to the injury/emotional disstress claims and must be produced.
  30. Walter v. Walch, 2012 WL 6864400 (N.Y. Sup. July 2, 2012).  Defendants made a sufficient showing of particularity to be entitled to discovery from plaintiffs’ private Facebook pages.  Plaintiffs who place their physical and mental condition in controversy may not shield themselves from disclosure material which is necessary to the defense of the action.  Plaintiffs must provide authorizations.
  31. Trail v. Lesko, 2012 WL 2864004, slip op. (Pa. C.P. Allegheny Co. July 3, 2012).  I don't usually put denials on cheat sheets, but this is Judge Wettick, and this decision is likely to become the standard in Pennsylvania.  Discovery of social media sites (plaintiff or defendant) is allowed unless "unreasonably intrusive."  In order to be entitled to discovery, the moving party must show a reasonable likelihood of the site containing relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.
  32. Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D. Or. Aug. 29, 2012).  Where plaintiff has alleged severe emotional distress, defendant is entitled, for the relevant period, to social media discovery of any direct or indirect communications with current and former employee of defendant; plaintiff’s social media communications that reveal, refer, or relate to any significant emotions or emotion-stirring events allegedly caused by defendant’s conduct.  Defendant may challenge the production if it believes the production fails short.
  33. Cajamarca v. Regal Entertainment Group, 2012 WL 3782437 (E.D.N.Y. Aug. 31, 2012).  Monetary sanctions are appropriate against plaintiff’s counsel for failing to advise plaintiff not to delete relevant information from her computers.  The relevance of the deleted information, which was of a sexual nature, was patently clear.
  34. Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. Sept. 7, 2012).  Social media is discoverable and not privileged, but must be particularized.  A particularized request for communications with specified employees of the defendant will be granted.  Vague requests will be denied.
  35. Howell v. Buckeye Ranch, Inc., 2012 WL 5265170 (S.D. Ohio Oct. 1, 2012).  Social media information is discoverable to the same extent as traditional material.  Defendants must make a particularized showing.  Plaintiff is on notice that defendants are seeking social media information and may not delete it.  Any deletions must be reported to the defendant, and plaintiff must endeavor to recover them.
  36. Simms v. Lewis, 2012 WL 6755098, slip op. (Pa. C.P. Oct. 10, 2012), pursuant to, 2012 WL 6888199 (Pa. C.P. July 3, 2012).   Discovery of plaintiff’s myYearbook account authorized.   Plaintiff's the public posts indicated that the private pages are likely to contain relevant information.  No expectation of privacy exists.  Defendant will be granted discovery of plaintiff's other social networking sites upon a similar preliminary showing.
  37. Bianco v. North Fork Bancorporation, Inc., 2012 WL 5199007 (N.Y. Sup. Oct. 10, 2012).  Given the plaintiff’s broad claims about alleged adverse impact on his life style and loss of enjoyment of life, defendant is entitled to Facebook discovery from plaintiff through the intermediary of a special master to whom the contents of plaintiff’s account will be produced.  The special master shall limit discovery to information that is calculated to lead to admissible evidence.
  38. In re White Tail Oilfield Services, L.L.C., 2012 WL 4857777 (E.D. La. Oct. 11, 2012).  Given claimant’s affidavit that he did not know how to download his own Facebook information, defendant will be given plaintiff’s download information, defendant will execute the download, and plaintiff must forward all downloaded information to defendant.
  39. EEOC v. Original Honeybaked Ham Co., 2012 WL 5430974 (D. Colo. Nov. 7, 2012).  Defendant in administrative class action is entitled to discovery from the plaintiff’s social media accounts.  The fact that information resides in cyberspace does not change its discoverability.  The claimants created these communications voluntarily.  Because a review of one claimant’s social media reveals much relevant information, there is valid reason to order discovery as to the other claimants in the class, particularly since other claimants posted to that claimant’s account.  All discovery will go through a special master to ensure that only discoverable information is ultimately produced to the other side.  Plaintiffs must produce all cell phones capable of text messaging and all social media access information to the special master for the time period at issue.  The cost of forensic evaluation of this electronic information will be shared jointly by defendant and plaintiffs.
  40. Mazzarella v. Mount Airy #1 LLC, 2012 WL 6000678, slip op. (Pa. C.P. Monroe Co. Nov. 7, 2012).  Discovery of unspecified social media is permitted.  No expectation of privacy exists.
  41. Reid v. Ingerman Smith LLP, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012).  Social media is a source for relevant and discoverable information.  There is no justifiable expectation of privacy in social media, even if limited to “friends.”  Plaintiff can have no expectation that “friends” will keep her post private.  Defendants have made a sufficient showing from plaintiff’s publicly available Facebook pages that private pages are likely to contain evidence relevant to her emotional distress claims.  Posts about plaintiff’s social activities may be relevant to emotional distress allegations and also identify potential witnesses.  Completely irrelevant posts need not be produced.
  42. Keller v. National Farmers Union Property & Casualty Co., 2013 WL 27731 (D. Mont. Jan. 2, 2013).  Social media is not protected from discovery simply because it is marked “private.”  It is both discoverable and potentially admissible.  The requesting party must make some threshold showing of likely admissibility.  A non-specific request for a fishing expedition into a plaintiff’s social media will not be allowed.  Plaintiffs must list all social media to which they belong.  Defendant can renew with a showing of likely relevance.
  43. Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. Jan. 10, 2013).  Plaintiff and his counsel was adequately sanctioned with costs, attorney fees, and an adverse inference instruction for intentionally spoliating the contents of his Facebook page while discovery was pending.  While the conduct was dishonest and unethical, there was ultimately no substantial prejudice as the information was recovered.  No new trial is required.
  44. German v. Micro Electronics, Inc., 2013 WL 143377 (S.D. Ohio Jan. 11, 2013).  Plaintiff engaged in significant social media use regarding her physical condition.  Plaintiff violated Rule 34 by failing to specify a production format for her social media production.  Cutting and pasting is not a form in which the information was ordinarily maintained.  The burden and expense to plaintiff does not outweigh production of the electronic information.  Plaintiff is not entitled to cost shifting.  Plaintiff is obligated by Rule 34 to undertake a review of her own online activity.  An offer to allow supply log-in credentials and passwords is not a valid alternative to production.  That proposal is rejected because it seeks to shift to the defendant the burden of sifting through plaintiff’s prolific on-line activities.  In light of plaintiff’s deceptive representations about discovery, defendant is entitled to an award of fees and costs.
  45. Scipione v. Advance Stores Co., 2013 WL 646405 (M.D. Fla. Feb. 21, 2013).  In slip and fall case, plaintiff is to produce all Facebook content since the accident that refers to the injury as well as recent Facebook photographs.
  46. Tejada v. Manhattan Plaza, Inc., 2013 WL 5396903 (N.Y. Sup. March 21, 2013).  Plaintiff’s counsel’s direction to plaintiff to not answer questions at her deposition regarding any social media accounts was unfounded and warranted reopening the deposition.
  47. Gatto v. United Air Lines, Inc., 2013 WL 1285285, slip op. (D.N.J. March 25, 2013).  After being ordered to authorize the defendant to access his Facebook account, plaintiff deactivated his account causing its contents to be lost.  By intentionally deactivating the account, plaintiff is guilty of spoliation.  Defendant is entitled to an adverse inference instruction to the jury regarding the destroyed electronic evidence.  Because plaintiff had a non-fraudulent excuse for his actions, monetary sanctions are denied.
  48. In re Christus Health Southeast Texas, 399 S.W.3d 343 (Tex. App. March 28, 2013).  Mandamus demanding discovery of social media in personal injury suit denied.  While the material was relevant and there is no expectation of privacy in social media, the request was unlimited in time and thus overbroad.
  49. Nieves v. 30 Ellwood Realty LLC, 966 N.Y.S.2d 808 (N.Y.A.D April 11, 2013). Defendant demonstrated that plaintiff's Facebook profile contained photographs that were probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook records may contain further evidence relevant to that issue.  In camera review is appropriate.
  50. Perrone v. Rose City HMA, LLC, 2013 WL 4011633 (Pa. C.P. Lancaster Co. May 3, 2013).  Plaintiff ordered to submit to search of private Facebook account by agreed-upon neutral expert and to turn over all photos and emails relating to specific topics, including physical activity, relevant to the litigation.
  51. Giacchetto v. Patchogue-Medford Union Free School District, 293 F.R.D. 112 (E.D.N.Y. May 6, 2013).  While plaintiff’s emotional distress claim does not justify unfettered discovery of social media, defendant is entitled to all mentions of emotional distress plaintiff may have made as well as any postings on social networking websites that refer to an alternative potential source of emotional distress.  Postings or photographs on social networking websites that reflect physical capabilities inconsistent with a plaintiff's claimed injury are also relevant.  Plaintiff’s counsel is to review for relevancy.  No third-party provider is necessary at this time.
  52. Kear v. Kohl’s Department Stores, Inc., 2013 WL 3088922 (D. Kan. June 18, 2013).  The nature of plaintiff’s claims support defendant’s discovery demand for Facebook and Twitter information subsequent to the date of her hire.  Plaintiff's activity on social media sites may lead to relevant information.
  53. Pereira v. City of New York, 975 N.Y.S.2d 711, 2013 WL 3497615 (N.Y. Sup. June 19, 2013), 975 N.Y.S.2d 711 (table).  With pictures from the public section of plaintiff’s Facebook page defendant established activities inconsistent with plaintiff’s allegations.  With that showing, defendant is entitled to discovery of the rest of plaintiff’s social media sites.  Due to the likely presence of irrelevant material, in camera review is proper.
  54. Jennings v. TD Bank, 2013 WL 5957882 (N.Y. Sup. July 3, 2013).  Disclosure of the relevant contents of plaintiff’s private Facebook account is warranted.  Photographs on public, unblocked portions of plaintiff's profile indicate activity inconsistent with her injury claims.  Plaintiff cannot shield disclosure material which is necessary to the defense of the action because she placed not only her physical condition but also her enjoyment of life and social activities.  Although plaintiff may utilize privacy settings on her account to restrict access, these postings are discoverable since there is no legitimate reasonable expectation of privacy.
  55. Higgins v. Koch Development Corp., 2013 WL 3366278 (S.D. Ind. July 5, 2013).  A court may compel production of a party's Facebook information if the party seeking disclosure makes a threshold relevance showing.  Plaintiffs claim that they can no longer enjoy various activities indicate that such information is directly relevant.  Setting ones Facebook profile to “private” does not entitle a person to a greater expectation of privacy in the context of discovery in a civil action.  Tagging public photographs does not create an expectation of privacy that defeats discovery.
  56. Fox v. Transam Leasing, Inc., 2013 WL 5276111 (D. Kan. Sept. 18, 2013).  Defendant is entitled to plaintiffs’ Facebook and Twitter archives.  They have not established that their social media, if any, is totally lacking in relevant information.  Plaintiffs must produce any discussions about the defendants or about this law suit that is not subject to a legal privilege.
  57. Imanverdi v. Popovici, 971 N.Y.S.2d 911 (N.Y.A.D. Sept. 27, 2013).  Order compelling plaintiff to produce the contents of her Facebook page for in camera review affirmed.  Both the discovery order and the accompanying order requiring plaintiff to pay counsel fees were proper exercises of discretion.
  58. Marcum v. Graphic Packaging International, Inc., 2013 WL 6388650 (N.D. Ind. Dec. 6, 2013).  Given the nature of the Facebook post defendant offered to support its motion, plaintiff’s social media postings are likely to contain relevant evidence and therefore must be produced.
  59. D.O.H. v. Lake Central School Corp., 2014 WL 174675 (N.D. Ind. Jan. 15, 2014).  Because plaintiff placed his emotional state at issue, defendant was entitled to disclosure of social media records that relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.  To the extent plaintiff withholds anything, he must produce a privilege log.
  60. Painter v. Atwood, 2014 WL 1089694 (D. Nev. March 18, 2014).  Plaintiff and two of her witnesses deliberately deleted relevant text messages and comments from Facebook pages after she filed suit.  A an adverse inference instruction as a spoliation sanction is appropriate.
  61. Ogden v. All-State Career School, ___ F.R.D. ___, 2014 WL 1646934 (W.D. Pa. April 23, 2014).  Discovery of social media activity is permitted where reasonably calculated to lead to admissible evidence.  Plaintiff must produce copies of all electronic communications belonging or attributable to him as a result of his affirmative actions that involved either the workplace conduct at issue or plaintiff’s emotional state of mind during the relevant period of employment.
  62. Hosch v. BAE Systems Information Solutions, Inc., 2014 WL 1681694 (E.D. Va. April 24, 2014).  Plaintiff’s False Claims Act action dismissed with prejudice due to his systematic spoliation of his electronic data from his cell phones, blackberry, and social media and refusal to turn over electronic devices for inspection.  Plaintiff had received a document preservation notice and other warnings.

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