Two More Cases Show The Inconsistency In Social Media Discovery

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no-fishingBy IT-Lex Intern Rachel Paxton-Gillilan (LinkedIn)

We’ve written before about two different courts considering the discoverability of social media accounts around the same time and coming to different outcomes.  And it appears that it has happened again—this time two federal district courts disagree about allowing broad social media discovery in two excessive force cases.

In Moore v. MillerColorado District Court Judge Kane previously ordered the plaintiff, James Moore, to “produce writings related to his arrest, his tax records, and his employment records,” including writings from various social media accounts.  Moore argued that the order was limited to “writings about his arrest.”  But the defendant argued, successfully, that “[n]arrowing discovery only to writings about Mr. Moore’s arrest . . . would exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and alleged physical and mental injuries.”

Once Moore realized that defendant sought all of his social media activity, he argued that it was an invasion of his privacy.  The court rejected the argument, noting that the scope of discovery is particularly broad when a plaintiff alleges physical injury and emotional distress.  The court mainly relied on Held v. Ferrellgas, an employment discrimination case out of Kansas, which ordered the plaintiff to produce his “Facebook activity—including posts, comments and messages—from the time he was first employed by the defendant.”

The court determined that the defendants are entitled to the information in the accounts and that, as in Held, the social media activity is relevant:

Mr. Moore’s Facebook activity is relevant to this claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).  Mr. Moore reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.

The court denied the parties’ request for in camera review, reasoning that a standard protective order adequately address Moore’s privacy concerns.

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On the other side of the country in Florida, in Salvato v. Miley, U.S. Magistrate Judge Lammens came to the opposite conclusion regarding the relevance of broad social media discovery.  The plaintiff, Vincent Salvato, sought personal emails, text messages, online comments, and social media communication of one of the officers, Deputy Norman Brown, involved in an alleged excessive force incident.

Brown made a Florida statutory and constitutional argument, but the court ultimately decided based on traditional evidence arguments: “[Salvato] failed to make a threshold showing that the requested information [was] reasonably calculated to lead to the discovery of admissible evidence.”  The court noted that Salvato merely hoped the requested information might include an admission against interest:

The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not sufficient reason to require Brown to Provide Plaintiff open access to his private communications with third parties.  Indeed, Plaintiff has essentially sought permission to conduct ‘a fishing expedition’ … on the mere hope of finding relevant evidence.

(internal quotations omitted).

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Although the courts ultimately came to different conclusions, these differences are explainable on the facts.  In Moore, the court was confronted with a plaintiff who has a very active online presence and was making claims of emotional distress.  In general, the plaintiff’s claims and online activities brought his social media accounts into issue.  In contrast, the Salvato Court was looking at a defendant, a person who did not choose to put his privacy at issue, and the court was presented with little evidence that Brown had used his social media accounts to discuss the alleged incident.

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1 Comment

  1. Ken Treece /

    Isn’t your title misleading since you come to the conclusion that the facts of each case explain the difference in treatment of discoverability of social media? The courts weren’t really inconsistent in their conclusions…if you believe your last paragraph.

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