As almost everyone is on social media sites, a common issue most plaintiffs will face in civil litigation is requests for production of information and electronic data regarding these sites. Not surprisingly, data from Facebook accounts, both the public and private portion, are commonly requested by defendants as part of the plaintiff ESI production.
We have blogged about this issue many times before (see here, here and here), and we noted a trend has emerged. When a defendant requests electronic data from the private portion of the user’s account, many courts will require a “threshold evidentiary showing” that the public portion of the account contains relevant information. If the defendant can make such a showing, the court may order a plaintiff to produce data from the private portion of the account. However, is this the only way to rule upon such requests? Magistrate Judge A. Kathleen Tomlinson of the Eastern District of New York says no.
The magistrate considered the issue in an order dated May 6, 2013 in Giaccehtto v. Patchogue-Medford Union Free School District, No. CV 11-6323(ADS)(AKT)(2013 WL 2897054 (E.D.N.Y.)). The underlying case was brought alleging violations of the Americans with Disabilities Act and the New York Human Rights Law. The plaintiff alleges that the defendant, her employer, discriminated against her due to her disability and retaliated against her after she filed a complaint with the New York State Division of Human Rights.
The defendant at first sought unfettered access to the accounts, but then reduced its requests to:
- Postings about plaintiff’s emotional and psychological well-being;
- Postings about plaintiff’s physical damages;
- Any accounts of the events alleged in her Amended Complaint.
The magistrate judge chose not to use the “threshold evidentiary showing” when ruling upon this issue, and chose instead to rule based on a traditional relevance analysis. So how did the court rule? Is the public portion of the account really a good measure of what may be on the private portion? Are social media accounts an accurate reflection of a plaintiff’s alleged emotional distress? Our discussion of Giaccehtto continues in our next blog.