United States: "Discovery Can Be Burdensome Even As It Is Inexpensive."

Last Updated: July 28 2017
Article by K&L Gates

Gordon v. T.G.R. Logistics, Inc., No. 16-cv-00238-NDF, 2017 WL 1947537 (D. Wy. May 10, 2017)

In this personal injury case, Defendant requested production of Plaintiff's entire "Facebook account history" for her two accounts (and later limited the relevant timeframe of the request to information from three years prior to the accident through the present). In response, Plaintiff produced information that referenced the at-issue auto accident or her injuries and also provided information identified by a set of keywords set forth by Defendant. She objected to further production based on a lack of relevance, undue burden, and invasion of privacy. The court granted Defendant's subsequent motion to compel, but imposed significant limits on the scope of production.

Addressing Defendant's motion, the court focused first on the scope of discovery and the principle of proportionality, noting that social media presented some "unique challenges to courts" including the modern trend toward posting information "historically ... considered private" to a "very loosely defined group of 'friends,' or even the entire public internet" in a "permanent and easily retrievable" format. The court reasoned that "[t]here can be little doubt that within those postings there will be information which is relevant to some issue in the litigation" but also acknowledged that "much of the information will be irrelevant."

The court went on to reason that "[j]ust because the information can be retrieved quickly and inexpensively does not resolve the issue. Discovery can be burdensome even as it is inexpensive" and "[c]ourts have long denied discovery of information which was easy to obtain, but which was not discoverable."

In the present case, the court noted, the defendant was correct that "there would be very little time or expense involved in the initial production" but reasoned that "[t]he problem is that such vast information has the potential to generate additional discovery or impact trial testimony."

It's not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.

"That being said," the court went on to acknowledge that:

Defendant has a legitimate interest in discovery which is important to the claims and damages it is being asked to pay. Information in social media which reveals that the plaintiff is lying or exaggerating his or her injuries should not be protected from disclosure. Courts must balance these realities regarding discovery of social media and that is what most of the courts which have addressed this issue have done.

Ultimately, following analysis of several cases addressing social media discovery, the court concluded that granting Defendant's motion would be "casting the net too wide" (even where Defendant had narrowed the time frame) and would "provide minimal relevant information while exposing substantial irrelevant information. As such the discovery would exceed the proper limits of proportionality."

The court specifically denied Defendant's request for social media information from prior to the accident. However, the court was not convinced that Plaintiff had produced all relevant information subsequent to that date and thus ordered production of "all relevant history which addresses Plaintiff's significant emotional turmoil, any mental disability or ability, or relate significant events which could reasonably be expected to result in emotional distress" as well as all references to the accident, its aftermath and her injuries and any postings related to her level of post-accident physical activity. In footnote the court explained that "use of the term 'significant' is to avoid disclosure of transient and trivial emotional distress" and that close calls could be submitted to the court for in camera review.

A copy of the court's full opinion is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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