eLessons Learned - Full Article

Discovery of Social Media: The Plaintiff Responds and Produces

Defendants in an automobile accident case sought discovery of Plaintiff’s facebook and myspace (i.e., social media) account information. Plaintiff was seeking damages based upon the physical limitations caused by the injuries sustained in the accident and for psychological damages caused by his newfound anxiety to travel and traffic as well as depression. Plaintiff conceded that the “public information,” or information available to all users/nonusers or friends/nonfriends should be discoverable pursuant to Federal Rule of Civil Procedure Rule 26 provided it was relevant. The Offenback Court conducted an in camera review of Plaintiff’s facebook page to determine the relevancy and discoverability of the material.[1]

After reviewing the materials, the Offenback Court held that “[s]ome small segment of the public information contained in Plaintiff’s account is properly subject to limited discovery in this case.” Among the relevant and discoverable materials identified were photographs and posts suggesting Plaintiff had been on a motorcycle trip after the accident. Plaintiff had claimed he was no longer able to ride his motorcycle and was terrified of travel.

Still, the Offenback Court took a limited or restricted view of the discoverability of social media accounts when compared with jurisdictions such as New York which have indicated a broad preference for the discoverability of such materials. Indeed, the court reiterated that Plaintiff had conceded the argument that public information on social media sites was discoverable under F.R.C.P. R. 26. The court went on to hold, “[w]ith the exception of the foregoing, the remainder of Plaintiff’s facebook account reveals little beyond routine communication.” The Offenback Court also indicated that Plaintiff was the more appropriate party to determine what materials would be potentially responsive to Defendants’ discovery requests, not the court. To this end the court indicated that, at least in the Federal District Court for the Middle District of Pennsylvania, Defendants should not be granted carte blanche access to Plaintiff’s social media sites. Rather, Plaintiff should determine what material is responsive and provide discovery on this material only. This contrasts with other jurisdictions which have allowed Defendants to have access to Plaintiff’s user name and password to conduct their own searches for relevancy.


Author Bio: Jennifer received a B.A. with Honors in Political Science and Philosophy with a minor in History from Union College. She will receive her J.D. from Seton Hall University School of Law in 2012. Jennifer has worked previously for the law firm of Aiello Harris, P.C. and is currently working with FINRA.

[1] Plaintiff was unable to locate the log in materials for his myspace account due to a lengthy period of inactivity.


Leave a Reply