Failure to produce social media in a timely manner during discovery resulted in sanctions, tens of thousands of dollars in extra costs and a delayed trial date in a recent case in Norfolk, Virginia.
In the consolidated tort action Federico v Lincoln Military Housing, plaintiffs are seeking damages related to black mold in military housing managed by Lincoln Military Housing. The plaintiffs were active in their use of email and social media to complain about their housing issues and the defendant was aware of this fact. However, plaintiffs produced little social media during discovery. The defendant filed a motion to compel, and after the production deadline passed, the defendant filed a motion for sanctions.
The plaintiffs engaged an IT consultant, who produced over 5,000 social media records. The plaintiffs argued that the defendant should bear the cost of the consultant. However, due to the plaintiffs’ delays, and in an effort to deter further noncompliance, the court allocated the cost of the consultant to the plaintiffs. In addition, the court ordered plaintiffs to pay a portion of the defendant’s attorney fees associated with the motion to compel.
This case illustrates that litigators must be cognizant of social media data and its potential relevance to a case, and set out early to ensure that these records are preserved. Unfortunately, because the attorneys representing the plaintiffs in the Federico case failed to implement a timely preservation plan for potentially relevant social media data, plaintiffs incurred $29,000 in IT consultant expenses, their own additional legal fees, and may incur up to $50,000 in sanctions. Moreover, it took several months to resolve the opposing party’s discovery and sanction motion, thus delaying the trial date.
Key custodians must be questioned early in the litigation process – in fact, as soon as there is a reasonable basis to believe that litigation is likely to arise – regarding whether, and to what extent, their social media resources might contain potentially relevant data. If any potentially relevant social media data are inaccessible, duplicative and/or cumulative, a potential litigant or its legal counsel should request that opposing counsel agree, and/or the court approve, that such social media data does not warrant collection and production. By addressing these issues quickly, a party will save substantial time and costs in the litigation process.
Contact Jay Yelton (269.276.8130 or jyelton@wnj.com), Dawn Ward (616.396.3039 or dward@wnj.com) or any other member of the Data Solutions Practice Group at Warner if you have questions about the impact of the Federico ruling.
