The latest in my on-going effort to keep you apprised of actual social media interrogatories and discovery requests upheld, at least in part, by various courts.
In Held v. Ferrellgas, Inc., Case No. 2:10-cv-2393-EFM-GLR (D. Kan.), an employment discrimination case involving a claim of retaliation in violation of Title VII, the defendant/employer served the following interrogatories and requests for production of documents:
Interrogatories
- Identify the user name and email address for any Facebook account maintained by you from February 2008 through the present.
- Identify the user name, registration information, account detail, login information, or any other identifying information for any job board or job search websites for which you are (or were) registered or of which you are (or were) a member, including but not limited to: Hot Jobs, Career Builder, Monster, job.com, and salesjobhunter.com from February 1, 2008 through the present.
Document Requets
- For each Facebook account maintained by you, please produce your account data for the period of February 1, 2008 through present. You may download and print your Facebook data by logging onto your Facebook account, selecting “Account Settings” under the “Account” tab on your homepage, clicking on the “learn more” link beside the “Download Your Information” tab, and following the directions on the “Download Your Information” page.
- For each job search website identified in response to Interrogatory No. 2, please produce your account data for the period of February 1, 2008 through the present.
The plaintiff objected to the requests and the defendant moved to compel responses. On August 31, 2011, the court granted the defendant’s motion to compel because, “information from Plaintiff’s Facebook page during Plaintiff’s tenure at Ferrellgas is relevant.” The court also noted:
[I]t appears that Defendant is attempting to mitigate Plaintiff’s privacy concerns by allowing Plaintiff to download and produce the information himself, rather than providing login information. Indeed, Defendant itself notes that it is not seeking unfettered or unlimited access to Plaintiff’s Facebook, but rather limited access during the relevant time frame.
The court also required the plaintiff to turn over the account data for the job search websites and boards that plaintiff was registered for:
Defendant also seeks to compel the production of account date for each job search website identified in response to its interrogatory. Defendant claims this information is relevant for several reasons. First, Defendant claims that any effort to find other employment bears on Plaintiff’s commitment to his job, his perspective on the working environment at Ferrellgas, and any purported emotional distress. Second, Defendant claims that after his employment, Plaintiff’s efforts to find other employment are relevant to emotional distress and actual damages and mitigation efforts. This court agrees.
So, what do we learn? Besides having more sample interrogatories and document requests that have been upheld, the first interrogatory is an excellent example of how to write a Facebook-related discovery request. Note that the interrogatory gave the plaintiff specific instructions on how to download all of his Facebook data. This was important because the court took comfort in the fact that the defendant was not “invading” the plaintiff’s privacy by requesting access to the account itself. By allowing the plaintiff to collect the information, which was limited to the relevant time-frame, the defendant was able to get the information it desired without forcing the plaintiff to turn over his username and password.
Two additional things to consider: (1) by allowing the adverse party to collect the data, you raise the concern that you will not actually get all of the requested information. But this is a common concern in nearly all discovery scenarios and should not cause to much heartburn; (2) while it was clear how the Facebook information was to be collected and produced, there is no such clarity with respect to data from the job search websites. Significantly, it appears that the court ordered production even though it was unclear how the data would be collected. This is helpful for those of you seeking discovery from smaller social media sites that don’t have readily apparent ways to download all of a user’s account information.
Now, go serve that second set of discovery and try to get that relevant information you are entitled to. If you have additional examples of interrogatories and document requests that have been upheld by courts, please email me the relevant info at tbs@mumfordwest.com. TIA.
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