In two opinions this month—coincidentally both involving the alleged use of excessive force by police—federal district courts came to opposite conclusions regarding whether to permit broad social media discovery.

A district court judge in Colorado ordered June 6 that a plaintiff provide his entire Facebook account history, arguing that it was relevant to his claims of emotional pain and suffering, physical pain, and humiliation (Moore v. Miller, No. 1:10-cv-00651-JLK-MJW (D. Colo. June 6, 2013)).

But a magistrate judge in Florida denied June 11 a request by a plaintiff to access a defendant's social media communications, labeling the interrogatories and document requests a "fishing expedition" (Salvato v. Miley, No. 5:12-cv-00635 (M.D. Fla. June 11, 2013)).

Relevant to His Claims.

James D. Moore alleged in his civil rights lawsuit against Denver and two police officers that the officers engaged in excessive force that left him with extensive physical injuries and chronic pain. The defendants sought all Facebook posts made by Moore, which he initially interpreted as anything he wrote about his arrest.

The defendants argued that Moore's document production under that interpretation was deficient.  They asked the court to compel Moore to provide anything that shed light on his emotional state before and after the arrest, as well as communications involving his alleged physical and mental injuries. The defendants also wanted a copy of Moore's Facebook activity log.

The court agreed that the defendants' request was reasonable. "Mr. Moore's Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000)," the court ruled. "Mr. Moore reputedly has chosen to share his version of events online often and in many different forums . . . . Defendants are entitled to know of these accounts."

The judge in the Moore case also denied a request to hold an in camera review of those documents, which has been ordered in similar social media discovery cases. The judge said the court's standard protective order was adequate.

'Not a Sufficient Reason.'

The magistrate judge in the Salvato case was more skeptical of a request for broad discovery of social media communications.

Salvato sued two deputy sheriffs for Marion County, Fla., because they allegedly used excessive force on his son, Joshua, and failed to provide him with proper medical treatment, which Vincent said resulted in Joshua's death.

Vincent Salvato requested discovery of social media communications by Norman Brown, one of the deputy sheriffs, which related "in any way to the incident." Salvato also requested Brown's personal emails, text messages, and online comments.

Brown objected, arguing the effect of the requests was "annoyance, embarrassment and oppression," and he said the information sought was irrelevant. Salvato responded that he believed the communications could result in an admission against interest.

The magistrate judge held that was not an adequate basis for the broad discovery request. "The mere hope that Brown's private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties," the court concluded.

Copyright 2013, The Bureau of National Affairs, Inc.