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Wells Fargo Employee Not Required to Subject her Facebook Account to Additional Review

Posted on November 16th, 2016

Facebook accountIn Westmoreland v. Wells Fargo Bank Northwest, N.A., Case No. 15-00312 (D. Idaho, Oct. 31, 2016), Plaintiff, a former employee of Defendant, sued Defendant for sex discrimination, age discrimination, and retaliation under both state and federal law. Specifically, Plaintiff alleged that her supervisor, Melendez, harassed and retaliated against her and forced her to take a “constructive demotion” in another state to “salvage her career”. Defendant asserted that its actions were justified due to Plaintiff’s “lack of leadership and inadequate job performance”.

During discovery, Defendant sought review of Plaintiff’s Facebook account, production of emails sent by Plaintiff’s counsel to an email account Plaintiff shared with her husband, as well as return of a company-issued laptop in order to obtain its contents. Plaintiff did not produce these items, and Defendant filed a Motion to Compel.

The court granted the Motion to Compel in part and denied it in part. With respect to the review of Plaintiff’s Facebook account, the court found that although Facebook materials did fall within the purview of Defendant’s requests, Plaintiff did produce her Facebook messages, and the request for her postings and photos were not proportional to the needs of the case. Plaintiff submitted a declaration, as did her counsel, that her Facebook account was scoured for relevant information, and eight pages of postings were produced along with the messages. The court therefore denied the request for the review of her entire Facebook account. The court also denied Defendant access to the emails from her counsel, as it found the email were intended for Plaintiff and were privileged.  The court determined that Defendant did not make a sufficient showing that the privilege was waived based upon plaintiff’s sharing of the computer with her husband. Finally, the court ordered Plaintiff to hand in the laptop for an mutually agreed-upon technician to image it and retrieve data for production to both parties under a protective order.

ILS – Plaintiff ESI Discovery Experts

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