Social media accounts, typically Facebook, are currently a hot-button issue for plaintiff ESI production in civil litigation. Most courts require a threshold showing that the public account has relevant information that would lead to discoverable evidence before requiring a plaintiff to produce private portions of the account.
In an order dated July 19, 2013 in the case of Jewell v. Aaron’s, Inc., Civil No. 1:12-CV-0563-AT (N.D.Ga. 2013), 87 opt-in plaintiffs are suing their employer for, among other claims, not allowing certain lunch breaks as required by law. The defendants sought, among their discovery requests:
“All documents, statements or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your work hours at Aaron’s store.”
The defendant justified this request by contending that some of these posts would show that the employees were, in fact, taking a lunch break during the day. Plaintiff trial attorneys objected to the request as overboard and unduly burdensome. The court investigated the burden of downloading the requested Facebook status updated, and noted that Facebook has a feature that allows users to download the electronic data, including timeline information, wall postings, activity log, messages and photographs in a single document.
However, the court ultimately held that the defendant failed to demonstrate the threshold showing of relevancy for the broad range of electronic data requested, “…the court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work house may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period…” Id. at 8. Concluding that the burden of such a request far outweighed the remote relevance of the information, the defendant’s request was denied.