Open Season on Facebook for Plaintiff ESI Production? Not So Fast.

22 Apr 2013

There is a new trend emerging in civil litigation relating to plaintiff ESI production requests: defendants are now regularly demanding access to social media accounts, particularly Facebook. While the case law continues to evolve, many courts hold that defendants must make a “threshold showing” that information gleaned from a plaintiff’s public Facebook account must be relevant to a claim or defense before a court will order production of data from the private portion of the account.[1]

Although there have been cases where defendants were able to make this threshold showing, the ability to obtain full production of a private Facebook account should not be presumed. In the event a defendant seeks to use the request to harass or intimidate, or if the request appears to be a mere “fishing expedition,” plaintiffs should timely object.

In the recent district court case Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180 (M.D. TN March 20, 2013), the plaintiff alleged employment discrimination against her employer. After plaintiff ESI requests were served, the defendant filed a motion to compel plaintiff to produce a blanket request for production of “Facebook and/or social media data,” to which the plaintiff objected.

The district court noted that the Sixth Circuit had yet to rule on the scope of discovery for private Facebook accounts. This is not uncommon for electronic discovery case law, as it continually evolving throughout the nation and internationally.

Due to the lack of precedent within the Sixth Circuit, the district court in Potts looked to courts outside the jurisdiction. Citing federal district court cases from Michigan and New York[2], the Tennessee district court ruled that the defendant failed to make the necessary threshold showing to gain access to plaintiff’s private account and that the defendant lacked any evidentiary showing that the public Facebook profile contained relevant information.

The Changing Nature of Plaintiff Electronic Discovery

As the social media explosion is barely a decade old, the precedent for Facebook’s role in discovery is still being fleshed out and will likely be tried on a case-by-case basis. Given its evolving nature as demonstrated in Potts, to the extent no binding authority exists, courts will look to case law from other jurisdictions. This, of course, will help set a uniform standard across the county and is useful for parties embroiled in electronic data discovery disputes in a jurisdiction that lacks precedent.

For more information about the use of electronic data from social media accounts, contact our plaintiff eDiscovery experts.

[1] See Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010); Keller v. National Farmers Union, CV 12-72-M-DLC-JCL (D. Mon. Jan 2, 2013).

[2] Citing Thompkins v. Detroit Metro Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012), McCann v. Harleysville Ins. Co of N.Y., 78 A.D.3d 1524, 1525 (N.Y. App. Div. 2010).