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The Scope of Social Media in Plaintiff ESI Production

Posted on August 27th, 2012

Litigants and courts struggle to define the scope of electronic data discovery, as well as the logistics of how to physically produce the electronically stored information. The newest scope and logistical challenges for ESI now lies in social media content.

In EEOC v. Simply Storage Management, LLC Case No. 1:09-cv-1223-WTL-DML (2010), the U.S. District Court in the Southern District of Indiana examined the proper scope of plaintiff ESI production for social media profiles. The case involved sexual harassment; it included claims of emotional distress involving depression, anxiety and post-traumatic stress disorder.

The defendant employer sought all data from the plaintiffs’ social media accounts, as the women’s emotional health was at issue. The EEOC (representing the claimants/plaintiffs) objected to the scope of the discovery requests and wanted to solely produce data directly addressing the plaintiffs’ claims.

The Court made certain findings regarding social media content:

  1. Social media accounts that are private or locked by passwords are not shielded from discovery;
  2. Social media content must be produced in accordance with 26(b), the relevance rule and undue burden balancing test; and
  3. It is reasonable to expect emotional and mental injury to be reflected in social media content.

The Court next turned to what scope would be appropriate for social media content. It disagreed that only direct references to the claims would be sufficient, as that would likely exclude data that might support the defense. The Court ordered plaintiffs to produce:

  1. All communications on social media starting from the beginning of their employment that reveal, refer or relate to any emotion, feeling or mental state;
  2. Third party communications if they place the plaintiff’s communications into context; and
  3. All pictures and videos during that time period. (However, the court noted that pictures posted on third party profiles or “tagged” are less likely relevant.)

This case involved only two plaintiffs; therefore, the ESI production, while arguably invasive to their privacy, would not be difficult to electronically produce. When trial attorneys bring class action suits or are involved in multidistrict litigation, however, plaintiff eDiscovery that includes social media can be a logistical nightmare. Our firm can streamline plaintiff ESI production that includes social media content in a cost-effective manner; contact us at 888-313-4457 for more information.

ILS – Plaintiff Electronic Discovery Firm

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