Deactivated social media accounts are discoverable and must be produced

In this personal injury case, the Eastern District Court of Louisiana issued a discovery order for the production of a deactivated Facebook account.

These the facts: an employee sued his employer for an injury suffered on the job. However, the employer filed a request for production of the employee’s Facebook account claiming to have seen a message admitting that the injury was actually suffered on a personal fishing trip.

Following Defendant’s request, the Court — to protect privacy — ordered an in camera inspection of the Facebook account’s history of the two weeks prior to the incident at issue. Plaintiff did not produce anything alleging that he did not have a Facebook account at the time of request for production, which was true (he later testified that he stopped having a Facebook account a couple of month prior to responding to the discovery request.)

However, a couple of months thereafter, and pursuant to the Court’s order, Plaintiff submitted to the Court for in camera review “an astonishing 4,000-plus pages of Facebook history” from the account whose ownership he had previously denied.

The Court was able to establish that the account had been only deactivated (see here the difference between deactivating and deleting an account).

The Court held that “[w]hile the Court has made a preliminary review of certain of these materials, it is not about to waste its time reviewing 4,000 pages of documents in camera when it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable”.

It also entitled Defendant “to analyze the thousands of pages of Facebook messages Crowe exchanged with others. Crowe’s efforts to avoid producing this material have unnecessarily delayed these proceedings and have wasted the time of his opponent and this Court”.

Accordingly, the Court ordered Plaintiff to make available to Defendant every page of the Facebook account history, without time limits, as well as to provide Defendant with the login information, including password.

Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, 2015 WL 254633 (E.D. La. Jan. 20, 2015) is available at… Open Pdf

Related material on lawyers’ advice on social media discovery: Plaintiff and its attorney sanctioned for Facebook spoliation (but multi-million dollar verdict upheld) – Lester v. Allied Concrete, 2013 Va. LEXIS 8 (Jan. 10, 2013)

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