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Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at [email protected]

eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information

March 14, 2012

By Doug Austin

 

In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

Plaintiff claimed ongoing suffering from osteonecrosis of the jaw (a severe bone disease that affects the maxilla and the mandible) against the defendant. Defendant served Plaintiff with its Second Set of Requests for Production of Documents, which requested Plaintiff’s log-in information to all of her social-networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.  In responding to the request, the Plaintiff only produced materials that were available to all Facebook users — not items hidden through Facebook’s privacy settings — claiming that the request was overbroad and a fishing expedition. As a result, the Defendant filed a motion to compel the Plaintiff to turn over her login information, including login for Facebook.

Why did the Defendant request the additional access?  As noted in the transcript:

“Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition.”

In the process of determining whether the Defendant could compel such discovery, Magistrate Judge William Wall first noted that “[n]o cases in the Second Circuit or the Eastern District of New York have directly addressed this issue”.  The Defendant based its argument on two cases where access to social media information was granted: Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) and Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).  In both cases, “publically available content on the individual plaintiffs’ public Facebook profiles provided sufficient relevant information for the courts to infer that further discovery was necessary”; however, as the court noted in this case, “no such evidence exists”.  Therefore, the court ruled as follows:

“Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.”

As a result, the court denied the defendant’s motion to compel.

So, what do you think?  Was the lack of publically available content sufficient justification for not granting the motion to compel?  Or should this case have been handled in the same manner as Largent and Romano?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

http://www.cloudninediscovery.com/ondemand/free-software-trial.aspx

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