By Barry Schwartz, Esq.
Magistrate Judge Nancy J. Koppe methodically stepped through the various discovery disputes in her June 29, 2018 order resolving mostly in favor of Denny’s in this slip-and-fall case. The plaintiff had several other health and injury issues that occurred before her alleged injuries in this case, which she wanted to omit from the record. The discovery disputes addressed whether various resources and records should be provided to Denny’s, the defendant, including:
- Records of an earlier auto accident including police report, medical records, property damage/photographic records, and insurance policies/claim notes
- Text messages, emails and other communications related to the auto accident
- Activity tracker data
- Social media accounts
- Employment records
Judge Koppe ordered that all discovery requested in the five categories above be provided. The only limitation was that text messages were restricted to those sent within 48 hours after the alleged accident, or those relating to physical injuries or emotional distress. Each portion of her order was supported with citations to precedential decisions, such as “finding that the defendants have the right to verify whether the plaintiffs’ claims that prior mental health issues are unrelated to their current claim of emotional injury are true.” Potter v. West Side Transp., Inc. 188 F.R.D. 362, 364 (D. Nev. 1999).
Judge Koppe’s detailed rejections of the plaintiff’s various objections to producing her social media accounts are especially noteworthy given the ever-increasing importance of such discovery in modern litigation.
Defendant Denny’s requested that the plaintiff “produce copies or allow for inspection, any social media account [you] have from five (5) years prior to the Subject Accident through the present.” The plaintiff objected on the grounds of relevance, burden, privacy and confidentiality, as well as on ambiguity and vagueness. Denny’s countered that the social media accounts were “relevant and [bore] on claims of emotional distress, adverse emotional or mental state, and other emotional injury.”
The judge provided clear and instructive reasoning in rejecting each of the plaintiff’s primary objections:
Privacy and Confidentiality. Judge Koppe began by citing the clear precedent that “[t]he content of social networking sites is not protected from discovery merely because a party deems the content ‘private.’” Voe v. Roman Catholic Archbishop of Portland, 2015 U.S. Dist. LEXIS 182641 at *6-7. In another cited case, the court noted that “compelling social media discovery in an employment discrimination case … that [reveals, refers or relates to] any significant emotion, feeling, or mental state allegedly caused by defendant's conduct” must be provided to the requesting party. Citing Robinson v. Jones Lang LaSalle Ams., Inc., 2012 U.S. Dist. LEXIS 123883, at *6-7.
Relevance. In eliminating this objection, Judge Koppe noted that “… social media discovery is ‘directly relevant to … allegations of a serious physical injury …’ and loss of enjoyment of life,” and it is to be provided. Citing Dewider, 2018 U.S. Dist. LEXIS 1158, at *15. The court expressly found “… that social media information and communications are relevant and, thus, discoverable under Fed.R.Civ.P. 26(b).”
Burden. Judge Koppe agreed with Denny’s assertion that “‘social media provides a contemporary diary’ relevant to [the plaintiff’s] pre-existing and current physical and emotional limitations alleged in her complaint,” citing Docket No 19 at 10. The judge added that, “[g]enerally, [social networking] content is neither privileged nor protected by any right of privacy." Citing Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).
This well-reasoned decision by Judge Koppe provides useful and instructive guidance on common objections to social media discovery™ requests and makes clear that, for the most part, such objections are generally without merit.
The decision also makes clear a quintessentially modern aspect of best practices for all sides in eDiscovery: Ask your clients, opposing parties, custodians and third parties about the use of all sorts of social media. One doesn’t need to be a millennial to understand that social media use has become a primary means of communication among this younger group, and thus, an essential element of discovery in modern legal proceedings of all types.