For most of our scorecards and cheat sheets we can update them on a real-time basis as the cases come down, because our ongoing research encompasses just about all of the cases we’d be likely to include.  Not so with the ediscovery for defendants cheat sheet.  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 this issue separately to find what we need to update properly.  

That’s what we did for our last update post in April, 2013, and that’s what we just did again.  Here are the updates to our cheat sheet.  Remember, cheat sheets only include cases favorable to our side.  There are other ediscovery cases involving plaintiff social media discovery out there that the defendants didn’t win. Please try not to add to our side’s losses.  Defendants seeking ediscovery of plaintiff social media evidence shouldn’t go on fishing expeditions, because courts don’t like it, any more than they like shots in the dark involving any other kind of discovery.  Until the rules are changed, the discovery standard remains “reasonably calculated.”  Defendants seeking plaintiffs’ social media activities should perform such reasonable calculations before making these sorts of discovery requests.

Anyway, with that caveat, here is the latest favorable batch of cases involving defendants being permitted, over opposition, to engage in discovery of plaintiffs’ electronic activities:

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.