Another Battle Over the Discoverability of Social Media

I cannot understand how anyone can make the argument with a straight face that social media posts of the plaintiff are not relevant.

Surely the posts of a the plaintiffs’s activities before and after an accident are relevant! They are much more reliable than what they say in  a deposition because they are made from their own initiative and volition. No one has asked them a question. They are generally spontaneous.
Additionally, it’s relevant electronic information that MUST be preserved. We all know that Facebook will not provide the information, so we must obtain it via discovery from the plaintiff. There are very easy means to obtain the information and it does not cost much for the plaintiff to download the data on a CD.
We have recently been fighting, and unfortunately losing this battle with some judges. Particularly, judges in rural parishes tend to be reluctant to give us this information. Perhaps, we’re just suffering the wrath of being “defense counsel,” but we MUST educate the judges on the relevance and ease of getting this information.
Failure of a plaintiff to provide us with the information, should result in sanctions (as I discussed in last week’s blog post).
The most recent decision from a  Louisiana  is:

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In the Matter of the Complaint of WHITE TAIL OILFIELD SERVICES, L.L.C., as Owner and Operator of M/V Whitetail I, her Engines, Tackle, Appurtenances, Furniture, Etc., Praying for Exoneration from or Limitation of Liability. 2012 WL 4857777 (U.S. E.D. LA) Civil Action No. 11–0009
United States Magistrate Judge, Karen Wells Roby, issued the following opinion:
Before the Court is a Motion to Compel Production of Social Media Discovery (R. Doc. 128), filed by Petitioner, White Tail Oilfield Services, LLC, (“White Tail”) seeking an order from the court compelling Defendant/Claimant, Joshua Pellegrin, (“Pellegrin”), to produce information from his Facebook page.
The motion is unopposed.
The motion was heard by oral argument on Tuesday, October 9, 2012.
I. Background
This suit involves White Tail’s petition for exoneration of liability, specifically for damages which it anticipated that would be brought against it after the M/V Whitetail I sank. Pellegrin’s claim is for personal injuries arising in connection with the accident. The specific injuries Pellegrin alleges are immaterial to the disposition of the instant motion.
As to the instant motion, White Tail seeks an order from the court compelling Pellegrin to produce information from her Facebook page.
II. Standard of Review
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Rule 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Further, it is well established that “control of discovery is committed to the sound discretion of the trial court …” Freeman v. United States, 556 F.3d 326, 341 (5th Cir.2009); Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).
Under Rule 26(b)(2)(c), discovery may be limited if:
(1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source;
(2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or
(3) the burden or expense of the proposed discovery outweighs its likely benefit. Id.
In assessing whether the burden of the discovery outweighs its benefit, a court must consider:
(1) the needs of the case;
(2) the amount in controversy;
(3) the parties’ resources;
(4) the importance of the issues at stake in the litigation; and
(5) the importance of the proposed discovery in resolving the issues. Id. at 26(b)(2)(C)(iii).
Rule 34 provides that parties may request documents and electronically stored information, but requires that a party who requests such information “must describe with reasonable particularity each item or category of items to be inspected.” Rule 34(a)(1)(A).
Rule 37 permits a party to move the court to compel discovery “[o]n notice to other parties and all affected persons.” Rule 37(a)(1). “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.
III. Analysis
In support of its Motion, White Tail argued that it originally propounded an Interrogatory No. 3, which requested that Pellegin “provide the following information for every social or professional networking or blogger site you have used,” and Interrogatory No. 5, which requested that Pellegrin “provide the following information for every bulletin board system (BBS), internet forum, message board, or other online messaging or posting system you have used.”
Both of these Interrogatories requested the following information:
a. Name and uniform resource locator (URL) address of the site;
b. The specific URL address 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 that you used the site;
f. The email address(es) used by you in registering for the site;
g. Your account Used ID number or Friend ID number, if applicable;
h. Any account identification other than that listed above.
White Tail also included in the instant motion a copy of a Request for Production No. 1 which it propounded upon Pellegrin, in which it stated “[f]or each Facebook account maintained by you, please produce your account data for the period of September 1, 2010, through present.” 
In that Request for Production, White Tail explained that this data could be accessed by Pellegrin by (1) logging onto a given Facebook account,
(2) selecting “account settings” under the triangle-shaped tab on the top right corner of the homepage, (3) clicking on a link entitled “download a copy of your Facebook data,” and
(4) following the directions on the data download page.
White Tail argued that although Pellegrin originally objected to these requests,  Pellegin withdrew his objections once White Tail filed a Motion to Compel. Pellegrin agreed to produce all information from his Facebook page by September 1, 2012; however, White Tail argues that Pellegrin had not yet provided the information.
According to White Tail, Pellegrin’s explanation for his failure to provide the data was that he did not know how to use the “download a copy of your Facebook data” function. White Tail argued that it then sent a subpoena to Facebook, which included a sworn authorization by Pellegrin that he was unable to download his information.
White Tail stated that Facebook did not accept Pellegrin’s explanation, but stated that because Pellegrin was responsible for creating the content himself, only he could download it. Facebook agreed to contact him directly to resolve the downloading issue. White Tail noted  that communications from Facebook’s counsel to Pellegrin’s counsel went unreturned.
White Tail further argued that in a September 24, 2012 discovery conference, Pellegrin’s counsel offered to have his paralegal contact Facebook’s counsel to learn how to download the information. White Tail further argued that many courts have required litigants to either download and produce third-party information, or consent to disclosure, as the information is within the user’s control. There was no reason why he could not download and share the information, or else contact experts at Facebook to reconcile any downloading issues.
At oral argument, counsel for White Tail reiterated his positions, and also stated that White Tail was willing to pay an Information Technology specialist to walk Pellegrin through the process of downloading his information from Facebook. White Tail also argued that despite the fact that it had Pellegrin’s password for the Facebook account, it could not obtain the information because simply printing screens from Pellegrin’s Facebook page would not capture deleted data, and while using Facebook’s “download your information” feature would capture deleted material, this information would be emailed only to Pellegrin.
The Court ordered counsel for Pellegrin to produce the information within seven (7) days of the issuance of this Order. The Court noted that, because Pellegrin and his computer were located in Houma, and because White Tail already had Pellegrin’s Facebook password, White Tail could itself access the “download your information” button and have a copy of the requested Facebook data emailed to Pellegrin. Pellegrin would then be obligated to forward all of the Facebook data he received in the email to White Tail’s counsel.
IV. Conclusion
IT IS ORDERED that Petitioner, White Tail Oilfield Services, LLC’s, (“White Tail”) Motion to Compel Production of Social Media Discovery (R. Doc. 128) is GRANTED.
Defendant/Claimant, Joshua Pellegrin, (“Pellegrin”) is to produce the information requested in White Tail’s Motion within seven (7) days of the issuance of this Order and as instructed herein
Now on a personal note, go Whitetail and the attorneys for them!
William Bryon Schwartz, Jedd Spencer Malish, Laurent J. Demosthenidy, Scott L. Sternberg, Baldwin, Haspel, Burke & Mayer, LLC, Andrew C. Wilson, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, John Martin Ribarits, Preis & Roy, PLC, Houston, TX, were for the petitioners, Whitetail.
There are times when we have to fight these fights to get accurate information about the plaintiffs. We know they will not give it to us voluntarily, so we have to fight for it and make THEM pay the sanctions for not willingly giving it to us.
Don’t let an attorney’s objections stop you from fighting the good fight. For example, just because they  SAY something is not relevant is not a basis to prevent its discoverability! For example, recently, the plaintiff’s attorney argued that his client OB-GYN records were not relevant and would not sign a release. I issued a subpoena and found evidence of prescriptions for pain medication and anti-depressants before the accident.
Relevant? I think so!
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