Access to Facebook profile denied in class action lawsuit
By Saranac Hale Spencer, From The Legal Intelligencer
The woman bringing a potential class action against the maker of treats that allegedly killed her dog doesn’t have to open her Facebook account to the defense, a federal judge has ruled.
The 648 pages of her Facebook posts, with redactions, that she provided are sufficient, U.S. Magistrate Judge Maureen P. Kelly of the Western District of Pennsylvania held.
Milo’s Kitchen, the maker of the dog treats, had asked the court to compel Lisa Mazur, who brought the suit, to produce a complete and unredacted Facebook data file and her username and password for the site. Milo’s argued that when Mazur had a public Facebook page, she had posted a statement blaming another major manufacturer of dog food for her dog’s illness.
“Defendants contend that because the entry is highly relevant to plaintiff’s claims, and because plaintiff has denied that she purchased any treats other than Milo’s treats, defendants are somehow entitled to limitless access to her Facebook account,” Kelly said. “The court disagrees.”
Because Mazur had at one point posted a comment on her Facebook page indicating that another company’s treats caused her dog’s illness, there might be other information relevant to the case on her Facebook account, Milo’s had argued. So the company sought the production of her whole account.
Although Mazur had objected to the request as being overbroad, she provided several hundred pages, with redactions, of her Facebook account, according to the opinion.
That production included “data indicating that ‘plaintiff likely purchased a jerky treat product other than the one at issue in this litigation’; ‘texts of various Facebook entries’; ‘conversations between plaintiff and a third-party (Kristyn Corcoran) regarding the instant suit’; and ‘a significant number of comments with respect to chicken jerky,'” according to the opinion.
She redacted information that wasn’t relevant to the suit.
Those redactions were legitimate, the judge said, because the defense is only entitled to information that is relevant to the case.
“Defendants nevertheless argue that it was improper for plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions are ‘suspect,’ and that any objections to producing plaintiff’s entire Facebook file on privacy grounds or because it would be burdensome are unfounded given the protective order entered by the court and the fact that plaintiff has already produced the entire file—albeit redacted,” Kelly said.
Milo’s cited to three Pennsylvania state-court cases to “stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made,” Kelly said.
However, she held those cases are distinguishable from Mazur’s suit.
Using a court of common pleas opinion from 2011, Largent v. Reed, as an example, Kelly noted the plaintiff there had filed a suit alleging she had gotten serious physical and mental injuries following a car accident.
The defense there sought access to her Facebook profile since it had pictures and posts that contradicted her claims, like a post that she was going to the gym.
Over the plaintiff’s objections, the defense won a motion to compel access to her account, saying, “The plaintiff had put her physical and mental health at issue and thus had no privacy rights in the Facebook postings,” Kelly summarized.
Mazur, though, complied with Milo’s request for access to her Facebook account and supplied the relevant information, Kelly said.
“Counsel for plaintiff not only took pains to include even borderline entries and un-redacted certain data in an effort to show the absence of materiality, but he has represented, and the court has no reason to doubt, that the redactions were made in good faith and that the information that remains redacted has nothing to do with the claims or defenses raised in this case,” Kelly said.
“Moreover, in Largent, the plaintiff’s claims of severe and permanent mental and physical injuries would seemingly affect almost every aspect of her life and likely be reflected in much, if not all, of her Facebook data. No such claims are at issue here and thus Largent (nor Zimmerman or McMillan) support a finding that disclosure of plaintiff’s entire Facebook file or her username and password is appropriate,” Kelly said, referring to the two other state-court opinions similar to Largent. “Under these circumstances, the court finds not only that unfettered access to plaintiff’s Facebook data, particularly her access information, is not warranted but that defendants have received all the discovery relative to plaintiff’s Facebook account to which they are entitled, with perhaps one exception.”
That one exception related to the redacted conversation between Mazur and Corcoran, who may be a potential class member if the case becomes a class action.
Mazur argued the conversation would be protected by attorney-client privilege through the common-interest doctrine.
Kelly held off on ruling on that issue, instead planning to do an in-camera review of the materials.
Thomas Soule of Edelman, Combs, Latturner & Goodwin in Chicago represented Mazur and couldn’t be reached for comment.
Anita Weinstein of Cozen O’Connor in Philadelphia had been listed as the attorney of record for Milo’s. She recently died and other attorneys on the case couldn’t immediately be reached for comment.
Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.
(Copies of the 10-page opinion in In re Milo’s Kitchen Dog Treats, PICS No. 15-0592, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •
