Social Media Discovery Has Its Limits

In a marine personal injury action, the defendant requested from plaintiff in discovery “all Facebook activity” since the accident date, as well as plaintiff’s Facebook password and log-in information. Plaintiff objected to the breadth of the discovery requests, and defendant moved to compel the production. Defendant essentially argued in its motion that anything posted by a litigant on social media is discoverable, and the broad Facebook discovery is relevant because plaintiff placed both his physical and mental condition at issue by filing suit.

In deciding the motion to compel, United States Magistrate Judge North noted that “[n]o doubt the proliferation of activity on social networking sites (‘SNS’) is affecting what have been fairly well-established conventions when it comes to formal discovery in federal-court litigation. Smart, opportunistic lawyers are now routinely seeking to exploit the ‘brave new world’ feel of this ever-evolving aspect of how many average Americans go about their daily lives to gain an advantage in litigation.” However, the discovery requests must still be relevant to the subject claims or defenses. “Simply placing [plaintiff’s] mental and physical conditions at issue is not sufficient to allow [a defendant] to rummage through [plaintiff’s] social media sites.”

Accordingly, the court limited defendant’s discovery requests to Facebook postings and/or photographs that refer or relate to the accident in question, plaintiff’s claimed injuries, any physical or mental capabilities inconsistent with the alleged injuries, and any other unrelated injuries.  The court ordered that all of plaintiff’s SNS postings be made available to plaintiff’s counsel to be reviewed by counsel to determine if said postings fit into one or more of the aforesaid categories and thereafter produced to defendant. Additionally, plaintiff was ordered to execute a declaration affirming that he has provided to his counsel all SNS information for review and preservation.

Farley v. Callais & Sons LLC

Adam P. Sanderson
asanderson@mblb.com