Court Balances the Realities of Social Media Discovery in Personal Injury Case

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

In this personal injury case, the court struck a balance when ordering discovery of social media posts, considering both the risk of chilling legitimate cases and the need to detect exaggerated claims.

The case arose after a TGR Logistics tractor trailer struck plaintiff Brenda Gordon’s vehicle. Gordon sued, claiming that she suffered “numerous physical injuries, pain (back, neck and jaw), traumatic brain injury, post-traumatic stress disorder, anxiety and depression” as a result of the accident.

TGR moved to compel the discovery of “an electronic copy of [Gordon’s] entire Facebook account history.” It argued that Gordon’s complete Facebook history — both before and after the accident — was relevant to its defense. Gordon refused to comply, countering that “the request is unduly burdensome, lacks relevance and is overly invasive.”

The court observed that under Federal Rule of Civil Procedure 26(b)(1), discovery encompasses “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Thus, the scope of discovery requires a three-part analysis: whether information is privileged, relevant and proportional.

Here, neither party argued privilege. Regarding relevance, the court noted that “social media presents some unique challenges.” In a case like this, “almost any post” could conceivably “provide some relevant information” about Gordon’s injuries or emotional distress.

The proportionality issue required the court to undertake a deeper analysis. Rule 26(c)(1) allows courts to limit discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden.” Here, the ease and low cost of obtaining information were not dispositive, since “discovery can be burdensome even as it is inexpensive.” Given the exponential expansion of available data, the scope of discovery must be limited.

The court next considered the “substantial risk” that legitimately injured plaintiffs would abandon their claims due to “the fear of humiliation” from disclosure of their social media history. On the other hand, social media posts demonstrating that a plaintiff “is lying or exaggerating … should not be protected from disclosure.” The court noted that it “must balance these realities” regarding the discovery of social media.

For context, the court looked to several employment law cases where the plaintiffs had to establish emotional distress. While those cases addressed similar claims, this case presented “more of the ‘garden variety’ emotion[al] distress claim.” The court noted that parties have defended against these claims “effectively … for many years” without relying on social media. Similarly, Gordon’s alleged traumatic brain injury is subject to “evaluation and diagnosis by experts using proven testing protocols,” without relying on Facebook posts for proof.

The court concluded that granting discovery for Gordon’s entire Facebook account history “would provide minimal relevant information while exposing substantial irrelevant information.” Therefore, it would “exceed the proper limits of proportionality.”

Accordingly, the court struck a balance. It denied any social media discovery prior to the accident. However, it did require Gordon to produce “all relevant history” regarding “significant emotional turmoil, any mental disability or ability, or … significant events” that might have caused emotional distress. The order also required Gordon to provide all posts related to the accident or its results, including her “level of activity after the accident.” The court advised Gordon to “err on the side of disclosure” and to provide documents for in camera review if in doubt.

Takeaways for collecting social media data for ediscovery

Avoiding an overly broad request from the outset may convince the court to rule in your favor regarding the scope of discovery. Here, TGR overreached in its initial request for Gordon’s entire Facebook history. The court scoffed at this, noting that TGR “exaggerated” its inability to defend its case without that history.

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