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Southern District of Indiana Ruling on the Production of Facebook Messages and Posts

Recently in Bell v. Pension Comm. of Ath Holding Co., No. 1:15-cv-02062-TWP-MPB, 2018 U.S. Dist. LEXIS 119201 (S.D. Ind. June 14, 2018), Judge Matthew P. Brookman denied in part and granted in part the Defendants' Motion to Compel Production of Certain Documents. The suit alleges that the fiduciaries of 401(k) plan were responsible for the payment of excessive management and administrative fees, and providing an imprudent money market fund.

The Defendants' motion sought to compel the production of Facebook direct messages and a post, which one of the Plaintiffs testified about at a deposition. Judge Brookman did not accept the Plaintiffs' argument that the motion to compel should be denied because of undue delay. A request for the Facebook conversations was sent three months after the deposition. A meet and confer on this issue took place two months later in November 2017. Then three days before the deadline for motions to compel on April 30, 2018, the motion to compel the production of Facebook post and messages was filed. Judge Brookman took the parties' focus on class certification motions into consideration and noted the slow pace of the cases was not solely the responsibility of the Defendants.

A stipulated ESI discovery order specified that instant message communications were not reasonably accessible, and would not be subject to discovery. The Court found it could not designate Facebook messages as instant message communications because the order did not specify the accessibility of such messages. It was unclear whether or not 'instant message communications' were defined by the fact that they could be deleted easily, or because they could not be searched by date ranges or subject area.

The discovery order also stated that instant message communications could be produced upon a showing of a particular need justifying the burden of preservation and retrieval. Judge Brookman found that the deposition testimony that there were Facebook messages concerning a Plainitff's view about the lawsuit constituted such need. He also noted that the testimony established that the messages had not been deleted, so there would be no undue burden to preserve and retrieve the messages.

The Court also ruled that the Plaintiff's general feelings about the litigation expressed in the messages did not fall under the work product doctrine. ". . . the Court cannot conclude that the Facebook private message communications are protected by the work product doctrine given that there is no evidence that the communication related to the legal strategies,theories, and mental impressions related to the furtherance of Plaintiffs' case." Id. at *18-19.

The Plaintiffs also contended that they should not have to produce the Facebook post discussed at the deposition, because it was not specifically referred to in the meet and confer and in correspondence which discussed Facebook communications in general. The Court concluded that the Defendants did not meet the burden of establishing the relevancy of the post because it was merely a snapshot of an article about the 401(k) plan inquiry that users commented on. "On its face, the Court does not see the relevancy of Grider's 2015 Facebook post of a snapshot of an attorney inquiry she had read a few times regarding the 401(k) nor, without a more detailed explanation, the relevancy of a few comments back and forth about the snapshot." Id. at *21.

The Court ordered the production of the messages, but denied the request to produce the post.

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