Facebook Discovery on Steroids

Facebook discovery is all the rage amongst defense lawyers in personal injury cases.  The reason is twofold.  First, it gets defense lawyers Facebook and magifying glassaccess to information that might lead to admissible evidence that could diminish a plaintiff’s claim.  Rarely will it relate to liability but there is a real possibility that out-of-context (or in context) it would lead a jury to believe their pain is less than stated.

The second reason, and I think an equally driving force, is that defense lawyers have a new tool to harass the plaintiff(s).  Why? Because there is at least a sub population of defense lawyers who want to punish plaintiffs and their lawyers for bringing any personal injury claim.  This is the type of discovery that can be done without any real effort.  All you have to do is ask.  That is the real beauty of this discovery from the defense lawyer’s perspective.  You just cut and paste from the guy down the hall or something you find online (I’m helping them here) and then just shout “reasonably calculated to lead to admissible evidence” if the plaintiff’s attorney objects.

In Farley v. Callais & Sons, LLC,  decided a few weeks ago in the Eastern District of Louisiana, the defendant made these requests:

Interrogatory 25: [P]lease provide the following information for every social or professional networking or blogger site you used:
a. Name and uniform resource locator (URL) address of the site;
b. The specific URL of your account profile on the site;
c. Your account name and real names or pseudonyms you have used to identify yourself on the site;
d. Your user ID or logon and password used to access your account on the site;
e. The dates you used the site;
f. The email address(es) used by you in registering for the site;
g. Your account User ID number or Friend ID number, if applicable;
h. Any account identification other than that listed above.
Request for Production 21: For each Facebook account maintained by you, please produce your account data for the period of March 24, 2014 through present. You may download and print your Facebook data by logging onto your Facebook account, selecting “Settings” under the triangle-shaped tab on the top right corner of your homepage, clicking “Download a copy of your Facebook data” link, and following the directions on the “Download Your Information” page

So it is basically, “Give me your password and let me rummage through your entire personal life and I’ll decide what is relevant.”  A corollary to this would presumably be going to the Plaintiff’s house to dig around to determine what would be admissible as opposed the parties decide relevancy.

Importantly, for my “defense lawyers want to harass plaintiff” theory (which I’m ready to bump from theory to hypothesis after this), the defendant also requested in their RPDs that Plaintiff “complete and sign in the presence of a notary the attached Facebook Affidavit of Authorization.”   Seriously?

Court’s Holding in Farley

I do not envy judges in these types of discovery disputes.  Because there are no easy answers.  Somehow, the court has to find the delicate balance between the plaintiff — who is often a real victim — and the defendant’s right to pursue a legitimate area of discovery.  Privacy interests against an opponent’s legitimate need for documents and information.

This court fashioned both a remedy and and a method of production, ruling first Plaintiff must produce:

1) postings by Plaintiff that refer or relate to the accident in question;

2) postings that refer or relate to emotional distress that Farley alleges he suffered as a result of the accident and any treatment that he received therefor;

3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges here;

4) postings that refer or relate to physical injuries that Plaintiff alleges he sustained as a result of the accident and any treatment that he received therefore;

5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by Plaintiff; and

6) postings or photograph that reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.

The court then set out a process for reviewing the information that put the onus on plaintiff’s attorney.   The Plaintiff was required to produce all of the postings that he made and his attorney was tasked with reviewing the posts to determine which must be produced according to the court’s order.  I imagine the defense attorney made a “fox guarding the hen house argument but the court specifically rejected the idea of in camera review by the court for “reasons too numerous to list.”  (Really, Judge?  We have time.)  I think the reasons are that the court understandably does not want to be the Facebook gatekeeper anymore than it wants to be the tax returns gatekeeper.  Plaintiff’s attorney would be wise, of course, to take any close calls back to the court.

I’m not excited about defense lawyers forcing plaintiffs to reveal anything on social media.  One path that I think court should consider is just making social media a “no fly” privacy zone.  But I’m probably out of the mainstream of opinion with that view.  At least this court acknowledges that there are real limits defense lawyer’s ability to go fishing through a plaintiff’s social media contacts.

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