The Northern District of Indiana considered whether to sanction Defendants in Haddad v. Lake Central School Corp. et al., Case No. 2:11-cv-430 (N.D. Ind. April 7, 2015) for failing to produce copies of Plaintiff’s twitter feed.
Plaintiff, a minor suing a school district for physical and emotional harm suffered due to bullying and harassment, had produced as part of his plaintiff ESI five printed pages from his Twitter account. Defendants believed that the five pages did not constitute all of Plaintiff’s relevant tweets and filed a Motion for Sanctions. In reply in support of their motion, Defendants attached a 56 page print-out of Plaintiff’s Twitter account. Defendants had not produced the 56 page document in earlier discovery. The court granted in part and denied in part Defendant’s motion.
Plaintiff responded by filing his own Motion for Sanctions, alleging that Defendants violated FRCP 37(c) by not first producing the document to Plaintiff before submitting it with their reply papers. Defense counsel claimed that they had no knowledge that the document existed until Plaintiff served discovery requests on a former school administrator (also an individual Defendant), who had printed the public Twitter feed and saved it in a personal folder before resigning from the school district.
In defense of the motion, Defendants asserted that because they did not intend to use the document to support their claims or defenses, they did not have to produce the document in the first place, per FRCP 26(a). They also asserted that the court should not impose sanctions because they did not withhold the document in bad faith and only learned of the document in November 2014.
The court sided with Defendants, holding that “even if defendants violated Rule 26(a) or (e) by failing to disclose the Twitter profile, sanctions would be inappropriate because any violation would have been harmless… [Plaintiff] could not be surprised by the Twitter profile because he created, possessed and controlled it.” The court also agreed that Plaintiff would suffer little prejudice given that Defendants had produced the document before the discovery deadline, before any notice of depositions, and before dispositive motions were filed.
ILS – Plaintiff Electronic Discovery Experts
Did you know? The U.S. Supreme Court must send the proposed FRCP amendments to Congress by May 1, 2015, and Congress must act on them by December 1, 2015.