eDiscovery Daily Blog

Plaintiff Ordered to Re-Open Social Media Account for Discovery – eDiscovery Case Law


In Chapman v. Hiland Operating, LLC, 2014 U.S. Dist. Case No. 1:13-cv-052 (D.N.D. May 29, 2014), while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

The defendant’s requests for production included a request for communications in the form of, “emails, text messages, instant messages, journal updates, Facebook postings, notes, cards, and/or memorandums”.  The plaintiff objected to that request on several grounds, including that it violated the attorney client and work product privileges, was “unintelligible, improperly vague and ambiguous” and overbroad.

However, in the plaintiff’s deposition, she stated that her attorney advised her to deactivate her Facebook account, which occurred prior to the production request by the defendants. She also stated that stated that she attempted to reactivate her account to respond to discovery requests but was unable to remember her password, but had not attempted to change her password or contacted Facebook regarding reactivating her account. She claimed that she rarely used the account, and when she did it was primarily to communicate with her nieces and nephews. 

Judge Miller noted that although the court was “skeptical” that the plaintiff’s Facebook account “will contain any relevant, noncumulative information, especially given the amount of discovery already completed in this case”, he granted in part the defendant’s motion to compel and ordered the plaintiff and attorney to “make a reasonable, good faith attempt” to reactivate the Facebook account.   He instructed that the plaintiffs do not have to permit defense counsel to be present during the attempt to reactivate the account, and if the account is reactivated, plaintiffs do not have to provide defense counsel the account login and password or full access to the account.

If the Facebook account is reactivated, Judge Miller ordered the plaintiffs to produce in the form of a screen shot other similar format all information from the account referencing a co-plaintiff’s health and his relationship with the other plaintiff since October 19, 2008, and ordered the plaintiff to complete the items by June 27th (last Friday).

So, what do you think? Was the plaintiff’s attorney out of line in ordering the plaintiff to deactivate her Facebook account?  Are screen shots the best way to produce social media data?Please share any comments you might have or if you’d like to know more about a particular topic.

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