Facebook messages exchanged between plan participants in fiduciary breach suit subject to discovery

Private Facebook messages exchanged between plan participants in a breach of fiduciary duty suit were subject to discovery by the plan fiduciaries, according to a federal trial court in Indiana. The messages, which disclosed nervousness regarding a pending deposition and a desire to be a good representative for the case, were legally relevant and, the court reasoned, not privileged work product reflective of litigation strategy.

Motion to compel discovery of private Facebook messages

Current and former plan participants in a company’s 401(k) plan brought suit, alleging plan fiduciaries breached their duties under ERISA by causing the plan to pay excess management and administrative fees and providing an imprudent money market fund investment option that allegedly resulted in tens of millions of dollars in plan losses. A Discovery Order issued in August 2016 reflected the parties’ agreement that the case did not require the preservation, collection, review, or production of electronically stored information (ESI) that is not reasonably accessible. In addition, the parties agreed that specified ESI, including instant messaging communications, were not reasonably accessible and thus, not subject to discovery.

In June 2017, the fiduciaries served the First Set of Requests for Production of Documents. At a subsequent deposition, in July 2017, a plan participant testified to exchanging private Facebook messages with another plan participant and to a 2015 Facebook posting which captured a screenshot from a local newspaper of an attorney’s solicitation of plan participants. Based on that testimony, the fiduciaries’ attorney, in September 2017, sent a letter to the plan participants’ counsel requesting that the plan participant produce her Facebook conversations. The participant refused, asserting that the Facebook communications were instant messaging communications not subject to the discovery order. The fiduciaries, viewing the messages as akin to e-mail, responded by filing a motion in April 2018 to compel discovery of the private Facebook messages and the 2015 Facebook post.

Focus on relevance of personal views and opinions of participants

The court slightly redirected the case, focusing on whether, as stated by the Discovery Order, specified facts demonstrated a “particular need for such evidence that justifies the burden of preservation and retrieval.” The fiduciaries argued that the participant’s deposition testimony established the relevance and accessibility of the Facebook messages, thereby providing the specific facts demonstrating a particular need for such evidence. By contrast, the participants argued that the Facebook private messages were not legally relevant, but only private communications (“jibber jabber”) regarding the emotional state of the parties during their preparations for deposition testimony.

The court initially noted that statements invoking a plaintiff’s personal views and opinions concerning a lawsuit may be relevant. The fact that the participants communicated nervousness about the deposition and one participant discussed her willingness to be a representative for the case, the court, therefore, concluded, had relevance to the parties’ claims and defenses. Moreover, absent evidence of the burden of retrieval, the fiduciaries’ established need for the Facebook communications justified the burden or preservation and retrieval.

Facebook messages were not privileged work product

The participants further contended that the Facebook messages were privileged work product, made as part of the litigation process and confidentially exchanged between parties with identical legal interests. In response, the fiduciaries maintained that the Facebook conversations did not relate to material prepared in anticipation of litigation, but were only general communications regarding a litigant’s feelings about a pending case, which do not fall under the work product doctrine.

Remaining unconvinced that the Facebook messages dealt with litigation strategy as opposed to merely general factual information, the court found that the work product doctrine did not apply. There was no evidence, the court reasoned, that the Facebook communications “related to the legal strategies, theories, and mental impressions related to the furtherance of the Plaintiffs’ case.” Accordingly, the fiduciaries’ motion to compel discovery of the Facebook messages was granted.

Facebook post was not relevant

The court, however, ruled that the participant’s 2015 Facebook post of a snapshot of an attorney’s inquiry from a local paper and isolated responses was not relevant. As the fiduciaries failed to meet their burden of establishing the relevancy of the 2015 Facebook post, their motion to compel discovery of the post was denied.

Source: Bell v. Pension Committee of ATH Holding Co. (DC IN).

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