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Can Plaintiffs Keep Facebook Profiles “Private” to Shield from eDiscovery?

Posted on August 7th, 2013

“Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster.” Such was the issue facing a district court in Higgins v. Koch Development Corporation, No. 3:11-cv-81-RLY-WGH(S.D.In. July 5, 2013). In its entry on the defendant’s Motion to Compel the production of plaintiffs’ Facebook accounts, the court considered the issue of whether the defendant made the “threshold showing” of relevance for Facebook information.

Plaintiffs had filed suit against a theme park, alleging that the negligent use of “acid and bleach” in the water had caused injuries to their eyes, throats, noses and lungs. Plaintiffs alleged such injuries have impacted their enjoyment of life, ability to engage in outdoor activities and employment. Further, both the plaintiffs’ Facebook accounts were set to the highest privacy settings. They argued that the accounts should not be included in plaintiff ESI production because:

1. The requests violated their privacy, since their pages only allowed certain people to see the accounts;

2. The requests violated the privacy of third-parties “tagged” on photographs; and

3. The requests were over broad, vague and ambiguous, not limited in time and scope.

The district court held the information sought was directly relevant to the claims and defenses in this case, additionally holding that the plaintiffs cited no case law that supported the claim that the highest privacy setting on Facebook can act as a “shield to discovery.” Additionally, the court dismissed the third-party privacy argument; even Facebook’s own privacy policy notes that users “post at their own risk.” The court agreed with plaintiffs’ scope argument and limited the Facebook production to material regarding employment, outdoor activities and enjoyment of life dated on or after the date of the accident.

ILS – Plaintiff Electronic Discovery Experts

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