eDiscovery Daily Blog

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

In Moore v. Miller, No.: 10-cv-651-JLK, 2013 (D. Colo. June 6, 2013), Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

In this case, the defendants filed a motion to enforce the court’s order to compel the plaintiff’s production of “writings related to his arrest, his tax records, and his employment records.” As part of those writings, the defendants asked for his Facebook records and activity log and documents he posted on his websites. The defendants claimed that the plaintiff did not comply because he only partially produced writings, including “‘an incomplete and highly-redacted printout of Plaintiff’s Facebook wall posts’” and he did not produce an activity log.

The plaintiff relied on his interpretation of “about his arrest” to narrow the scope of the order compelling production. The court remarked that narrowing the scope to this extent would “exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and his alleged physical and mental injuries.” Moreover, the court noted that the defendants’ request for Facebook information extended to “all of his missing Facebook posts” and the activity log.

The plaintiff argued that this expanded scope sought irrelevant evidence and would invade his privacy. But the court found the plaintiff’s allegations of physical injury and emotional distress warranted a more in-depth review of his social media account. His “Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).” Moreover, the plaintiff “reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.” {emphasis added}

Although the plaintiff requested that the data be reviewed in camera, the court found its protective order would protect the plaintiff’s privacy.

The court also granted the defendants’ motion for attorneys’ fees related to the motion, noting “how unfortunate it is that the parties’ differing interpretations about the scope of ordered discovery spawned a chain of hostile emails and ultimately the instant motion. Where the nature or scope of an Order is contested, the best course of action is for the disputing parties jointly to file a motion for clarification.” In addition, the motion sought the defendant’s current address, tax returns, and employment history: “No party should have to resort to motion practice to obtain information as elemental as a party opponent’s address.”

So, what do you think?  Was the judge right to allow discovery of the plaintiff’s Facebook information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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