Court Grants Dueling Motions to Compel for Facebook Social Media Posts: eDiscovery Case Law

In Hampton v. Kink, et al., No. 18-cv-550-NJR (S.D. Ill. Jan. 13, 2021), Illinois Chief District Judge Nancy J. Rosenstengel granted the defendants’ motion to compel ordering the plaintiff to produce to the defendants the name of her Facebook handle by January 20 and she also granted the plaintiff’s motion to compel, ordering that the defendants “by and through counsel, must perform a search of electronically stored information (ESI) contained on the private Facebook page, “Behind the Walls—Illinois Dep’t of Corrections,” which can be accessed by Defendants Doering, Kink, and Burley, and produce any posts: (1) mentioning Hampton; (2) mentioning any transgender prisoner or transgender prisoners in general; or (3) posted by any Defendant.”

Case Background

In this case, the plaintiff, who had been an inmate with the Illinois Department of Corrections (“IDOC”) at the time she filed her lawsuit, alleged claims for failure to protect, cruel and unusual punishment, and excessive force, all under the Eighth Amendment.  The defendants’ motion to compel sought Facebook posts from Hampton, from January 1, 2018 to the present, which reference her litigation with IDOC, her medical and mental health treatment, and her gender identity. The plaintiff objected on the grounds that the request was not relevant, was unduly burdensome, and was meant to harass her, but did note that her Facebook page was public, and the defendants were free to sort through the posts for any relevant information.

The defendants argued that the documents were relevant because Hampton’s gender identity and her mental and health treatment were a central issue in the case and the posts would show lasting effects of the Defendants’ actions as well as how she was treated by Defendants and her vulnerability while in prison.

In turn, the plaintiff sought posts from the defendants from the Facebook page “Behind the Walls—Illinois Dep’t of Corrections”, a private group established in 2011 for correctional staff. The group’s posts are only available to group members and the plaintiff received some sample postings from the group through an anonymous source. Those samplings were posts that discussed the plaintiff and, according to her, were homophobic, racist, transphobic, and demeaning. The plaintiff requested from the defendants posts from the group page from January 2018 to the present that related to (1) the plaintiff, (2) transgender prisoners, and (3) posts made by the defendants.

The defendants admitted that defendants Doering, Kink, and Burley had access to the group page but objected to searching the group for the documents requested by Hampton, which would include any posts that the defendants liked, read, or otherwise had access to.  In response, the plaintiff argued that the posts were relevant and were limited in time and scope and specifically sought posts that were transphobic and discussed the personal and medical information of inmates, including the plaintiff. She already had a sampling of posts which showed that there were posts of a transphobic nature about her as well as other inmates.

Judge’s Ruling

With regard to the defendants’ motion to compel, Judge Rosenstengel stated: “The information Defendants seek is relevant to the Eighth Amendment claims in this case. Defendants seek Hampton’s Facebook posts from January 2018 to the present that reference her litigation with IDOC, her medical and mental health treatment, and her gender identity. And, with the exception of Hampton’s gender identity posts (a request that encompasses all content on her Facebook page), Defendants’ request is not overly burdensome. Given that Hampton’s Facebook page is available for viewing by the general public, counsel for both parties agree that Plaintiff need only provide Defendants with her Facebook ‘handle’ to satisfy their production request. Accordingly, Hampton is ordered to produce her Facebook handle to Defendants within seven days.”

With regard to the plaintiff’s motion to compel, Judge Rosenstengel stated: “Hampton requests an order compelling Defendants to produce Facebook posts/comments/reactions pertaining to Hampton, transgender inmates, or made by Defendants Burley, Kink, and Doering from the private Facebook page, ‘Behind the Walls—Illinois Dep’t of Corrections.’ Hampton also seeks an order compelling Defendants to produce the same information from their personal Facebook accounts, to include posts/comments/reactions pertaining to Hampton and transgender inmates and related activity logs dating back to January 2018…Hampton cites Brown v. City of Chicago, Case No. 19-cv-4082 (N.D. Ill.), a case in which counsel was ordered to complete an ESI search on behalf of their clients and determine what information was subject to the discovery request. The information Hampton now seeks is relevant to her Eighth Amendment claims, and counsel for Defendants shall be required to produce this information to Hampton within thirty days.”

So, what do you think?  Could the discovery of this information have been accomplished without a court order?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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