Social Media Disclosure in Plaintiff ESI Production Requires Threshold Showing by Defendant
One new area of plaintiff electronic discovery that is often contentious is the request for access to personal social media accounts. Defendants are now commonly requesting total access to plaintiffs’ Facebook, Twitter, Instagram and other accounts as part of eDiscovery. Many plaintiffs understandably object to this, typically alleging the requests are overbroad, an invasion of privacy and used solely for harassment and intimidation.
So how does the law balance the need for plaintiff ESI production to include social medial accounts while guarding against unnecessary invasions of privacy?
Many defendants making the argument for full access cite Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) for the proposition that when posting on social media, plaintiffs do not have a reasonable expectation of privacy as the purpose of the sites is to share information. The Romano court held the communications in that case were relevant to determine if plaintiff was actually injured as alleged, and the defendant’s need for the relevant data outweighed the concerns of plaintiff. In Romano, plaintiff’s public account showed her in various physical activities that allegedly belied her claim of injuries.
The latest case where a defendant cites Romano to seek access to a social media account is in the case Keller v. National Farmers Union, CV 12-72-M-DLC-JCL(D.Mon. Jan 2, 2013). In Keller, the court reminds the defendants that Romano had made an initial showing that the public section of the account contained information that disputed plaintiffs’ claims. This was the necessary “threshold” showing that the court employed in ordering the plaintiff to produce the private portions of the account.
In Keller, the defendant had not met (or even attempted to meet) this threshold, and the court ruled in favor of plaintiff to deny the motion to compel discovery. However, the court allowed the defendant leave to file a renewed motion to compel, giving it another shot a meeting this threshold. Plaintiffs counsel should be mindful of this case as the law on social media access continues to evolve.