eDiscovery Daily Blog

Yet Another Request for Facebook Data Denied – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is a recent case where the request was denied.

In Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, (D. MD Tenn. Mar. 20, 2013), Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

In this harassment and discrimination case, the defendant, after serving requests for production on the plaintiff in April 2012, deposed the plaintiff on February 7 of this year, where she testified that she and her counsel possessed several other documents that they did not produce for the defendant.  The defendant filed a motion to compel several types of data including “Facebook and/or other social media data”.  Since the motion to compel, the plaintiff produced the following items:

  • Plaintiff’s day planner;
  • 8-10 pages of documentation concerning “write-ups” and “store visits” from Plaintiff’s employment at the Dollar Tree Store;
  • All saved or exchanged emails between Plaintiff, Trowery and/or any other representatives of Dollar Tree, or involving anything relevant to Plaintiff’s claim in Plaintiff’s possession, including the email containing a draft of Plaintiff’s statement to the EEOC in support of Trowery.

With regard to the request for Facebook data, the plaintiff objected, citing “other court’s holdings that the discovery of Facebook is allowed only where “the defendant makes a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

Judge Haynes noted that while the Sixth Circuit has not yet ruled on the scope of discovery of private Facebook pages, other courts hold that:

“[M]aterial posted on a `private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”

In this case, Judge Haynes ruled that “The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence…Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.”

The defendant also requested reasonable attorneys’ fees incurred in preparing the motion to compel, but Judge Haynes ruled “Given that Plaintiff had justifiable reasons for her discovery objections, the Court concludes that Defendant is not entitled to attorneys’ fees for its motion to compel.”

So, what do you think?  Was the judge correct to deny the Facebook request?  Please share any comments you might have or if you’d like to know more about a particular topic.

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