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Plaintiff Email and Facebook Accounts Sought in Class Action Lawsuit

Posted on January 19th, 2015

Plaintiffs alleged Defendants failed to maintain their residential properties and failed to remedy the properties after mold was discovered, resulting in personal injury in the class action case Federico et al., v. Lincoln Military Housing LLC, et al., Case No. 2:12-cv-80 (E.D. Virginia, December 31, 2014). Defendants sought Plaintiff ESI, including email threads, text messages and social media accounts, particularly Facebook.

At first, Plaintiffs produced very little requested ESI: a few emails but no text messages or social media accounts. Defendant filed a Motion to Compel. After two hearings directing Plaintiffs to produce this electronic data, the production deadline passed and Defendants filed a Motion for Sanctions. At a hearing on discovery progress, Plaintiffs asserted they hired an independent IT consultant to conduct a search and organize the production. Plaintiffs then produced 5,000 records from social media and Facebook and over 1,300 emails, spending about $29,000.

A few things to note about the Plaintiff eDiscovery production:

  • Most of the relevant evidence produced in the ESI production was already in Defendants’ possession: emails from the Plaintiffs to Defendants complaining about the property and pictures of the properties.
  • The few examples the Defendants offered of Plaintiff email and social media statuses were only “marginally relevant,” in the court’s opinion.
  • The “marginally relevant” email and social media evidence “almost uniformly support the Plaintiffs’ claims.”

The court considered the Motion for Sanctions under three separate but overlapping standards:

  1. Should Defendant’s costs in compelling the production be reimbursed under FRCP 37(a)(5)(A) ?
  2. As extensive production was tendered after expired court-ordered deadlines, are sanctions under FRCP 37(b) and (c) warranted?
  3. Are spoliation sanctions warranted for destruction or irrevocably lost evidence, as Defendants contended but Plaintiffs disputed?

We will continue our analysis of this opinion in our next post!

ILS – Plaintiff Electronic Discovery Experts

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