Facebook Fishing Expedition in Wyoming Curtailed
Wednesday, May 31, 2017
Posted by: Mary Mack
Citing proportionality and protection against embarrassment, Mark Carmon, Federal Magistrate Judge for the District of Wyoming allowed discovery of Facebook posts in part and denied discovery in part.
The personal injury case Gordon v. T.G.R. Logistics, Inc., No. 16-cv-00238-NDF, 2017 WL 1947537 (D. Wy. May 10, 2017) is about an auto accident where the plaintiff alleges physical injuries as well as post traumatic stress disorder, traumatic brain injury, depression and anxiety. The request for production from the defendant requested the plaintiff’s Facebook history in its entirety be downloaded to a thumb drive.
Noting that the download itself would be relatively easy, and certainly inexpensive, the court went further to analyze whether it would be overly burdensome or cast “too wide a net” to be fit the proper limits of proportionality, that is to “provide minimal relevant information while exposing substantial irrelevant information.”
The court considered the impact of producing the stream of Facebook posts:
“It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.”
The court emphasized the difference between “garden variety” emotional states and the “significant” emotional turmoil or events, any mental disability or ability, references to the accident, aftermath, injuries or postings related to post-accident physical activity. The court demanded the posts be ‘significant’ to shield disclosure of “transient and trivial emotional distress.”