Does the Future of Plaintiff ESI Production Include Facebook?
A Pennsylvania judge recently issued an expansive ruling about electronically stored information (ESI) and the growing trend for defendants to request plaintiffs’ Facebook passwords in the case of Trail v. Lesko, No. GD-10-017249 (C.P. Alleg. Co. July 3, 2012 Wettick, J). The court looked at numerous Pennsylvania cases with eDiscovery Facebook issues to glean a common logical trend: The courts require a “threshold” showing of relevant information on the public portion of the person’s account in order to gain access to the private portion of the account.
Federal courts have also grappled with this 21st century discovery issue. The Trail opinion mentions a federal employment discrimination case where the judge found, “The main challenge in this case is not one unique to electronically stored information…Rather the challenge is to define appropriately broad limits—but limits nonetheless—on the discoverability of social communications in light of a subject as amorphous as social and mental health, and to do so in a way that provides meaningful direction to the parties.” EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). The court went on to order the Facebook account produced, but only the limited time period related to the allegations of the case, and claimed that allegations of emotional distress inevitably results in this type of relevant documents and data.
Plaintiff ESI production for class action lawsuits are typically less voluminous than the defense production, but not less burdensome when plaintiffs are individuals spread across the country or even the world. Social media accounts, in particular, are increasingly areas of focus in complex litigation. Federal case law, including the above-mentioned EEOC case, is leaning in the direction of social media as discoverable, but there still must be a more demonstrable need than simple fishing expeditions.
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