In Doe v. Nat’l Collegiate Athletic Ass’n, No. 1:23-cv-00542-SEB-MJD (S.D. Ind. Feb. 15, 2024), Indiana Magistrate Judge Mark J. Dinsmore granted defendant’s motion to compel the production of Plaintiffs’ private social media messages in their entirety, rejecting the plaintiffs’ burden and privacy objections.

Case Background

This case involved a variety of tort claims against the NCAA, including negligence, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and various breach of contract claims related to current and former college baseball players who allege that they were subjected “rampant sexualized harassment and misconduct at the hands of their coaches”.

At issue were two of Defendant’s requests for production. Request No. 23 sought: “A copy of each Plaintiff’s social media feeds from Facebook, Instagram, Twitter, Threads, LinkedIn, Snapchat, TikTok, YouTube, or any other social media account maintained by a Plaintiff since the alleged abuse commenced for that Plaintiff to the present.”

Request No. 24 sought: “For each Plaintiff’s social media account on Facebook, Instagram, Twitter, Threads, LinkedIn, Snapchat, TikTok, YouTube, or any other social media platform that has been maintained by a Plaintiff since the alleged abuse commenced, an export of all information associated with that user’s account.”

To each of these requests, Plaintiffs responded: “Plaintiffs incorporate their General Objections, Objections to Definitions, and Objections to Instructions as if fully set forth herein. Plaintiffs further object to this Request as unduly burdensome and disproportionate to the needs of the case. Plaintiffs are willing to meet and confer to narrow the scope of this Request.”

Judge’s Ruling

Judge Dinsmore began his analysis by stating: “As an initial matter, the Court notes its concern with Plaintiffs’ lackadaisical approach to discovery in this case. Defendant served its discovery requests in August 2023, yet as of February 5, 2024, Plaintiffs had not yet produced any electronically stored information responsive to Defendant’s requests…Plaintiffs point to the impasse between them and Defendant with regard to the use of search terms to identify relevant posts and private messages from their social media accounts, but it does not appear that Plaintiffs made a robust effort to explore other options, or to at least produce any obviously relevant social media information in a timely manner. Plaintiffs essentially held all of their social media information hostage to Defendant’s agreement to their review proposal, not making any real effort to begin production of indisputably relevant information,…because the parties were debating the use of search terms as a way to reduce Plaintiffs’ burden of culling their social media information. This is not an acceptable way to approach discovery.”

Noting that “At the hearing, Plaintiffs agreed to produce their entire social media feeds in the format in which Plaintiffs obtained them using the export feature found on each social media site”, Judge Dinsmore stated: “The only remaining issue, then, is whether Plaintiffs must also produce the private messages from their social media accounts.”

Considering the production of plaintiffs’ private social media messages, Judge Dinsmore added: “There is no doubt that the private messages contain information relevant to Plaintiffs’ claims for emotional distress. There is also no doubt that they likely contain wholly irrelevant information. The problem is that Defendant served its document requests on August 18, 2023, nearly six months ago, and to date Plaintiffs have failed to propose a workable way in which to identify the relevant messages, other than a message-by-message review, which they argue would be unduly burdensome and disproportionate.”

Judge Dinsmore rejected the plaintiffs’ proposed solution that they not be required to produce any of their private messages, stating: “The Court rejects Plaintiffs’ proposed solution for two reasons. First, Plaintiffs have not satisfied their obligation to demonstrate specifically what the burden would be for them to review the private messages for relevancy… Indeed, when asked at the hearing, Plaintiffs were unable to answer the most basic question of how many private messages there are, demonstrating that they have made little to no effort to quantify any burden that may exist… Second, while Plaintiffs’ desire to maintain the privacy of their irrelevant private messages is understandable, Plaintiffs’ privacy concerns are largely obviated by the fact that they are proceeding under pseudonyms in this case.”

In granting defendant’s motion compel the production of Plaintiffs’ private social media messages in their entirety, Judge Dinsmore found that 1) plaintiffs’ private messages “may be designated as confidential under the protective order”, 2) any portion of Plaintiffs’ private messages that is “used by either party in conjunction with a court filing shall be filed under seal”, 3) “names and other identifying information of any third party shall be redacted from any private message that is filed” and that 4) “Defense counsel shall take extra care to ensure the relevancy of any private message to the claims or defenses in this case before using that private message in a deposition or court filing”.

So, what do you think? Would the plaintiffs have gotten a different result if they were more cooperative in discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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