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Court Examines Whether Public and “Private” Communications on Social Media Are Treated Differently in Discovery

Posted on October 25th, 2017

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Learn more about eDiscover from reading our blog postsThe opinion in Brown vs. City of Ferguson, No. 4:15-cv-00831-ERW, (E.D. Mo., 2017) examined the question of whether public and “private” communications on social media are treated differently for purposes of discovery.

On January 4, 2017, the Court ordered Plaintiffs to disclose all social media of Plaintiffs and Michael Brown Jr. for the five years preceding the events occurring on August 9, 2014. Plaintiffs then requested  clarification of the order, specifically asking whether they are required to disclose only the information publicly available on their social media accounts or whether they were also required to produce their private, personal communications exchanged on Facebook Messenger.

In their request to the Court, Plaintiffs asserted that they have privacy rights protecting messages sent privately through Facebook Messenger. However, as a general proposition, social media content is neither privileged nor protected by a right of privacy.  The Court stated that a person’s expectation that her communications are private is not a legitimate reason to shield those communications from discovery.

The Court stated that it’s analysis of discovery does not change simply because the request involves social media content. It further explained that it treats a discovery request for social media content as it would a request for emails, text messages, letters, or other documents containing personal communications. The Court’s order compels Plaintiffs to produce all social media content which has any relevance to this case, including private messages sent through Facebook messenger.

This disclosure is limited to the five years preceding August 9, 2014. Information relevant to this case is broad, because Plaintiffs are seeking damages for loss of love, companionship, affection, care and society, loss of future support, conscious pain and suffering, and compensatory damages for psychological damage.

The Court further ruled that Plaintiffs’ disclose the discovery to Defendants within twenty days.  The Court also acknowledged the parties’ agreement that Defendants are not entitled to Plaintiffs’ passwords/unfettered access to Plaintiffs’ social media accounts (which access is not generally allowed under the FRCP).

ILS–Plaintiff ESI Discovery Experts

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