Electronic Discovery Law

Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information contained within Plaintiff's accounts is properly subject to discovery.”  Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.”  (Plaintiff's MySpace account was not searched as it had not been accessed since November 2008 and Plaintiff could not locate the log-in information.)  The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.”  In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

The court closed this opinion with a footnote expressing its “confusion” as to why its assistance was required in this instance and reasoning that because Plaintiff was most familiar with his own account, “it would have been substantially more efficient for Plaintiff to have conducted this initial review and then, if he deemed it warranted, to object to disclosure of some or all of the potentially responsive information.”  The court acknowledged that the “scope of discovery into social media sites ‘requires the application of basic discovery principles in a novel context’” and that “the challenge is to ‘define appropriately broad limits … on the discovery ability of social communications,’” but reiterated its point that (subject to a properly narrow request) “it would have been both possible and proper for Plaintiff to have undertaken the initial review of his Facebook account to determine whether it contained responsive information” and to thereafter involve the court if a dispute remained as to whether that information was subject to production.