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Social Media Posts: The New E-Discovery Battleground

Created on July 2, 2020


Director of Marketing at Exterro







Qandah v. St. Charles County (E.D. Mo. April 2, 2020)
proves that E-Discovery professionals have been saying it for years: social media will be the new battleground for proving your case. This case gives us a glimpse into the painstaking ordeal it may take sides to agree on what and when relevant social media data is produced.

Overview:

In this case, involving misconduct of a correctional officer against a prisoner, the plaintiff alleges that the defendant deleted relevant Facebook posts and moved for spoliation sanctions.

To prove that the defendant intentionally let another prisoner attack the plaintiff based on the plaintiff’s faith, the plaintiff requested that the defendant produce Facebook posts that supported the plaintiff’s claim. Throughout four months of back and forth negotiations, the plaintiff never received the requested Facebook posts.

When the court granted the plaintiff’s motion to compel production, the alleged posts the defendant requested were missing. Therefore, the plaintiff argued for spoliation sanctions based on the deletion of the Facebook posts.

Ruling:

  • Motion Granted in Part. The court ruled that the defendant “shall make the Facebook page in question reasonably available to the Plaintiff for inspection,” but would not grant additional sanctions against the defendant since the posts in question were ultimately produced
  • No Bad Faith Shown. The plaintiff argued, based on the delay and expenses incurred to get the Facebook posts produced, that additional sanctions were warranted. The court disagreed, stating that the plaintiff never proved that the information was kept from the plaintiff in bad faith.
  • Prejudice Proven Based on Absence of Evidence. It is noteworthy that the court found that the plaintiff was prejudiced by the absence of the Facebook posts based on the plaintiff being aware of the posts in question and that they were relevant to the case.
David Cohen, Esq.

Expert Opinion from David Cohen, Esq., Chair of E-Discovery Group, Reed Smith LLP

"The opinion reflects no basis for defendant’s failure to produce all of his relevant Facebook posts, but defendant escaped sanctions probably because relevant posts were ultimately recovered. Defendant was very fortunate the court did not award plaintiff at least recovery of costs required to compel production of the relevant evidence."

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.