In Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016), a Fair Housing Act case, defendants moved for sanctions against the plaintiff alleging plaintiff deleted Facebook posts relevant to this lawsuit. The plaintiff argued that the posts were not deleted, but instead were “hidden” from public view. Soon thereafter, plaintiff produced a printed set of most of the “missing” Facebook posts. Three posts, however, remained missing. In denying defendants’ motion, the court found that the “missing” Facebook posts, because of their nature (photographs of the plaintiff’s children, supplied as “screen shots” by the defendants), were not relevant to the case. Moreover, the court noted the defendants failed to request the information through discovery. The court specifically noted that one’s claim that all social media posts are relevant “sweeps far too broadly” and discovery must be tailored to relevant information. However, because the plaintiff did change privacy settings to the Facebook account in violation of a previous court order to maintain the “status quo” of social media accounts, the plaintiff was warned that further conduct in this manner could result in sanctions.
The takeaway from this decision is that social media is here to stay and can be relevant to – and thus subject to production in – a litigation. When advising your client about preservation obligations, be certain to remind them that social media outlets (facebook, Instagram, SnapChat, Musically,….) are all potential caches for relevant information and must be preserved when litigation is reasonably anticipated.