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Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights – eDiscovery Case Law


In Stallings v. City of Johnston City, No. 13-cv-422-DRH-SCW, 2014 U.S. Dist. (S.D. III. May 19, 2014), Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

The initial order concerned discovery production of the plaintiff’s financial records through a previously issued subpoena. The plaintiff had objected to this production, on the grounds that the defendant had not specified the information sought from the records, namely an unidentified amount of money missing from the defendant’s accounts. In the objection, the plaintiff stated a belief that “seeking the financial records is a fishing expedition on the [defendant’s] part.” However, the magistrate judge ordered the production of the records and found upon review several cash deposits that were deemed potentially relevant, and then directed that the production of the plaintiff’s financial records would be subject to a protective order.

On the matter of the Facebook conversations, the plaintiff had produced approximately 466 pages of printed documents from the relevant account, with the names redacted, in response to the defendant’s discovery request for “[e]ach and every social media posting by [plaintiff] from 2011 to the present concerning her employment” at the defendant, “allegations of wronging against her, her suspension or termination, the investigation into missing money or wrongdoing … her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint.” The defendant objected to the redaction of names, to which the plaintiff responded that they did not have an unredacted hard copy of the pages due to technical difficulties involving Facebook’s policies. The magistrate judge directed the plaintiff to produce either an electronic version of the Facebook pages, or a hard copy of unredacted pages.

The plaintiff then appealed on these orders, arguing that “defendants have presented no basis to override her right to privacy in her bank records afforded under the Illinois Constitution” and further that the request for unredacted Facebook data “violates her privacy, as well as the privacy of minors and other individuals not involved in this litigation.” At issue regarding the Facebook pages was that Facebook only allows users to download the contents of their entire account, which would require the plaintiff to produce all of her Facebook conversations since 2007 if submitted as discovery, when the defendant requested only documents from 2011 onward.

Upon reviewing the issue of the financial records, Judge Herndon found that any evidence of cash deposits made to the plaintiff’s account during the specified time period were relevant to the defendant, but agreed that the plaintiff has a right to privacy of bank records. Therefore, it was ordered that discovery of evidence would be limited to only those deposits made in cash, “demonstrating that they were made in cash and on what date.”

With regard to the discovery issues concerning Facebook pages, Judge Herndon noted that while the plaintiff states potential violation of privacy for minors, the plaintiff had not indicated clearly whether any of the conversation relevant to the litigation had taken place with minors. Further, it was noted that some of the redacted pages did contain relevant conversations, or conversations that could be deemed relevant at a later date, such as potential admissions against interest or inconsistent testimony. Therefore, the plaintiff was ordered to produce “a redacted hard copy of all relevant Facebook pages from 2011 to the present” as well as “the names and towns of residence of the individuals with whom [plaintiff] had relevant conversations.” Further, “[i]f any of the relevant conversations are between individuals who are currently minors, [plaintiff] is not to provide defendants with the minor’s name or town of residence unless Ordered by the Court at a later date.”

So, what do you think? Are sufficient steps being taken to protect individual rights to privacy concerning discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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