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Episode 88 is an analysis of the decision by United States District Judge Christine P. O’Hearn in the matter of Williams v. First Student, Inc., 2022 WL 7534247 (D.N.J. 2022).
This decision is from October 13, 2022, and we’ll discuss whether a party is required to produce an Instagram account in native format to allow the receiving party to view the photos and videos relevant to the case.
Keep reading or watch the video to understand the eDiscovery issues.
Good morning and welcome to Episode 88 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the founder and CEO of eDiscovery Assistant, as well as the principal at ESI Attorneys. Thank you so much for joining me today.
Before we get started, there are three events coming up that I want you to know about in terms of education in the eDiscovery space. First — I think I mentioned this one last week — I’m incredibly honored to host Judges William Matthewman and Xavier Rodriguez on the Judicial Panel in what will be Part Three of the Midwest Webinar series on emojis, sponsored by multiple of the ACEDS chapters. That webinar is scheduled for November 30th at noon Eastern Time.
Second, I’ll be at the Georgetown Advanced eDiscovery Institute later this week, moderating a panel on Topics in eDiscovery. If you’re attending that in person or virtually, take a listen to our panel. The topics are going to be incredible. If you’re going to be there in person, please stop by and say hello.
Third, you can sign up now to be notified when registration is live for the University of Florida eDiscovery Conference to take place on February 8th and 9th in 2023. That conference will have limited in-person availability in Gainesville, on the campus, and of course, will be live-streamed and free to attend virtually.
Let’s dive into this week’s decision which is from Williams v. First Student by United States District Judge Christine O’Hearn. This is on appeal from the magistrate’s decision ordering the plaintiffs to reproduce their daughter’s Instagram account in native format.
In this decision, Judge O’Hearn upholds the magistrate’s decision and finds that there is no abuse of discretion in ordering that the social media profile be produced in native format, especially given the social media consent to agreed to by the parties.
As always, we tag each of the issues in our case law database with the eDiscovery issues that it covers. Our issues this week include Instagram, photograph, ESI protocol, text messages, video, social media, proportionality, form of production, and native format.
In this case, the parties entered into a Social Media Production Consent order on July 21st of 2021. That order set forth how social media for the minor plaintiffs in this case would be produced. That, of course, is a huge issue because the individuals here are all children and their parents are signing on their behalf. That order set forth the following language:
All social media information, messages, emails, and forensic data for any and all social media platforms shall be produced in a usable electronic format that provides a “timeline” and context between images, videos, and messages/posts.
The plaintiffs then went on to produce their daughter’s Instagram social media account in PDF format on March 22nd, 2022, so a year after that social media consent order was filed with the Court. The production of the Instagram account in PDF format prevented the defendants from being able to view or play any of the JPEGs or videos that were included in the profile. That’s according to what the decision actually states. JPEG is technically a file of a still image, so you would be able to view those on a PDF unless we’re talking about GIFs, or perhaps the Court uses the wrong language in describing the content.
The defendants moved to compel production of the profile in native format to allow them to view that video content and to have the metadata associated with each post in the profile. Plaintiffs argued that production in native format would make it difficult for them to be able to separate out the non-relevant posts in production and that it was a larger burden on them and a cost that should not be incurred.
The Magistrate issued its order on August 22nd, 2022, and held that the production of social media files in PDF format violated the Consent Order that the parties had agreed to because the files were not in a usable format, i.e. that they preluded the viewing of the video files. The Magistrate also found that the social media posts were highly relevant to the plaintiff’s claims and that the discovery was proportional to the needs of the case. The plaintiffs then appealed the magistrate’s ruling under 28 U.S. Code § 636 and Federal Rules of Civil Procedure 72.
What’s the Court’s analysis on appeal? Well, the District Court starts with the standard of review. We’ve discussed this previously on the Case of the Week that orders from a magistrate judge can be appealed to the District Court under a 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.
Now, the District Court here notes that non-dispositive matters that are referred to a magistrate judge under 28 U.S.C. § 636 are subject to a clearly erroneous standard. That’s what we’re dealing with here is a non-dispositive matter because the resolution of the production of this ESI is not going to be outcome determinative of the case.
The Court notes here that the plaintiff argues the wrong section of Rule 72 in its papers, that it is in fact Rule 72(a) that applies and not Rule 72(b)(2). First takeaway is make sure you’re arguing the right section to the Court. The section that the plaintiffs actually argued to the court relates to information in prisoner disputes and that is not what we have before us.
The District Court also notes that the Social Media Consent Order that the parties entered into controls in this case, and sets forth the parameters for how social media discovery should be produced. That is in fact the only issue that is properly before the District Court.
The District Court then points to the language of Rule 34(e)(2) that requires a party to produce ESI in a form that is “reasonably usable”, and states that language is consistent with the Consent Order in this case. We’ve got the Consent Order that already controls, but also the language of Rule 34 requiring parties to produce in a format that is reasonably usable. Both argue in favor of production in native format here.
The District Court then goes on to state that “courts routinely order electronic discovery to be produced in native formats and there is nothing whatsoever about this case or the magistrate judge’s order that is clearly erroneous, an abuse of discretion, or contrary to law.” And as such denied the plaintiff’s appeal here.
Of note in the court’s statement is that it cites to persuasive authority in a decision from the Middle District of Pennsylvania that was decided about six weeks ago. That case, which is called Palmer v. York County, stated that requests for native production, “are an increasingly familiar aspect of discovery in this modern information technology area.”
Requests like the instant request for production of documents in their native original source format often facilitates discovery in that the “production in native format will provide a party with the metadata necessary to identify the provenance of each document and put it into its proper context.”
With all that, what are our takeaways from today’s case where the plaintiff’s appeal was denied? Well, this decision on native production in social media really reflects a trend towards courts permitting and in fact ordering the production of native format, just as we saw here. This case is particularly important because it’s about social media, and social media has its own issues because of the format in which social media is maintained.
There are tools that are available in the market that plaintiffs could have used here to allow them to collect the individual posts and the metadata that would have eliminated the relevance issue that plaintiffs raised and provided a reasonably usable format for the defendants.
So there was really a way for the plaintiff to meet both their obligations under the consent order here and protect their daughter’s privacy in the social media posts. But that requires counsel knowing about these tools, understanding the complexity of the technology associated with social media, and being able to have the conversation with a vendor about the format in which data will be produced and whether it will be usable for the other side.
Social media is tough for a number of reasons. The first is that the context is everything. You heard that quote from the court where it discusses that metadata may be necessary to identify the provenance of each document and put it into its proper context. That is very crucial for social media.
You think about the notion of—we’ve talked before on the Case of the Week—the notion of being able to download all of your Facebook data. I realize that Facebook is now considered a platform for older people, but Facebook has its own ability to allow you to download that content. However, when you download that content, you’re going to get a lot of HTML and you’re going to get all of the content separated by content type instead of in a neat, clean order of here’s how the posts appear, here’s who commented on them, all that information. That is not available in the download that comes from Facebook that is available to users. In order to get evidence from Facebook that’s going to be usable in litigation, you have to use a special collection tool.
Let’s think about other social media platforms. Context is everything, and each platform displays information differently. I mean, think differently about Facebook that we just talked about versus Twitter, versus TikTok, versus Instagram, versus anything else that contains video, images, other social media platforms that we’re not discussing today.
Each platform carries different types of content. TikTok is all video. Instagram is photos and video. Facebook is text, posts, photos, video. Twitter is all of the above. Each of those platforms have their own abilities to have comments made on them and have content shared. All of that is metadata associated with an individual post that has to be captured and produced when you want to have context.
What that means is that counsel are going to have to start thinking about how they will want to produce evidence at trial, how you want to be able to put it before a court and ensure that the data that you receive in discovery or that you’re producing in discovery from social media and other types of sources is captured in a way that allows them to use that evidence.
If you need to be able to put up a particular post that has a video in it, you need to be able to play that video. If you produce something in PDF format, you cannot play that video. And this court has said that producing in PDF, that does not allow playing of a video, is not producing in a reasonably usable format under Rule 34.
We’ve got to have a post-by-post capture here and a full capture that provides context for each of the individual posts. You’ve got to think clearly about how this plays out, and if you don’t know how to do that, you need to find someone to help you to figure that out.
Now, as the technology develops, it may become easier and less expensive to provide this information. But it is counsel’s job to make sure that their clients understand, at the outset of a case before it’s even filed, what ESI is implicated in a case or will be required to be preserved and produced and the issues and costs associated with each form of ESI. If you don’t know, you need to get someone to help you who does know.
Now, rulings like this one in the Williams case are more clearly defining the counsel’s obligations to understand ESI and how it will play out in litigation. Failure to do so is going to continue to cost your clients more money and potentially claims if counsel don’t start learning what they need to know.
We’re actually going to miss next week for the Thanksgiving holiday, but we’ll be back the week after Thanksgiving with a new case on our Case of the Week series.
As always, if you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
Thanks so much. Have a great rest of this week. Happy Thanksgiving. Be safe if you’re traveling, and I look forward to seeing you right after Thanksgiving on our next episode.