Court Orders Production of Five Years of Content from Facebook, MySpace for Opposing Counsel’s Review

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012)

In this personal injury and product liability case, the court granted (in part) Defendant’s motion to compel production of the contents of Plaintiff’s Facebook and MySpace accounts from April 2007 through the present and ordered that the contents be uploaded to an external storage device and produced to defense counsel for review and identification of “discoverable” materials.

Plaintiff alleged that on April 27, 2007 she was involved in an automobile accident and received serious and extensive injuries because both her seat belt and airbag were defective.  Plaintiff further alleged that as a result of those injuries her quality of life was significantly diminished.

Prior to seeking formal discovery of Plaintiff’s social networking accounts, Defendant obtained wall posts and photos from Plaintiff’s public Facebook profile that “provid[ed] evidence of Plaintiff’s post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress” which were relevant to the claims and defenses in the case.  Plaintiff subsequently changed her account settings, however, rendering the information inaccessible by the defendant. Upon formal request for the information, Plaintiff produced “‘[fifty-one] heavily redacted pages’ from her Facebook wall, and eight photographs.”  Asserting that "Plaintiff limited her production to information and materials that support her allegations," Defendant requested that the court perform an in camera inspection of Plaintiff’s Facebook and MySpace accounts to determine whether Plaintiff had complied with her discovery obligations.

Plaintiff objected that the request for a complete copy of her social networking site accounts was merely a fishing expedition and argued that an in camera inspection was usually reserved for determinations of privilege and not relevance.  The court agreed, in part, and found an in camera review was unnecessary.  Instead, the court concluded that evidence related to Plaintiff’s physical capabilities and social activities was relevant to the action and noted that the information obtained by the defendant negated Plaintiff’s claims that her account information was irrelevant.

Thus, despite recognizing that “litigation does not permit a complete and open public display of Plaintiff’s life,” and that the court must “balance Plaintiff’s personal interests,” the court ordered Plaintiff to upload onto an external storage device, “all information from her Facebook and MySpace accounts from April 27, 2007, to the present” and to provide that information, with an “index of redacted social networking site communications,” to defense counsel to review for discoverable material not previously produced.  Upon resolution of any disagreement regarding the discoverability of particular content, the Plaintiff was ordered to provide “formal discovery responses” and defense counsel was ordered to return the external storage device and its contents, without making copies.  Counsel was also prohibited from sharing the contents with anyone other than support staff.