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Court Quashes Overbroad Plaintiff ESI Sought Against Mother of Injured Child

Posted on February 24th, 2014

It comes as no surprise that some defendants may try to seek ESI from plaintiffs solely as part of a fishing expedition, or worse.  Particularly when a defense attorney admits to such in a hearing, there is little doubt that the court will quash the subpoena in favor of plaintiff’s privacy.

In the case Root v. Balfour Beatty Construction LLC, Case No. 2D13-3205(Fla. Dist. Ct. App. Feb. 5, 2014), the plaintiff was the mother of a three-year-old child and filed suit individually and on behalf of the minor. The child had been hit by a car on a construction site and suffered extensive injuries. The claim included the loss of parental consortium.

As part of the ESI request to plaintiffs, the defense sought Facebook postings from the mother regarding:

(i) Psychological care obtained by the mother before or after the accident;

(o.) Postings, statuses, photos or video related to the mother’s:

i. Relationships with the injured child or her other children;

ii. Relationships with other family members, boyfriends, husbands or significant others;

iii. Mental health, stress, alcohol or substance abuse

(v.) Anything referencing or related to any other lawsuit filed by the mother

The defense attorney was quoted at the hearing in response to the allegation that this was a mere fishing expedition: “These are all things that we would like to look under the hood, so to speak, to figure out whether that’s even a theory worth exploring.”

The court noted that of course, social media postings are discoverable. However, they still have to be (1) relevant and (2) admissible in court or reasonably calculated to lead to admissible evidence. Here, the plaintiff claims are negligence and loss of parental consortium; affirmative defenses include negligent entrustment of the child, negligent supervision and driver negligence.

The court found that the Facebook ESI sought on the mother’s past and present mental health, use of alcohol, relationships with others or additional lawsuits are irrelevant to such claims or defenses. The court quashed the discovery request for the categories listed above, and noted that if further developments make this information relevant, then the trial court may have to review any such information in camera.

ILS – Plaintiff Electronic Discovery Experts

Did You Know? For plaintiff ESI re: Facebook, many courts require a threshold relevancy showing of the public posts to get private data.

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