New Facebook Decision – Novartis Loses Again

Three weeks ago I ran a story on a New York federal court decision that denied a defendant access to a plaintiff’s Facebook account. Then, two days ago, a Florida federal court decision came out on the same topic. I was about to do a simple update of my original post.

But. While this was a different case, the defendant was the same, Novartis Pharmaceuticals. And the subject dealt with the same medical drug, Zometa, and the same medical condition, osteonecrosis of the jaw. And the law firm is the same, Hollingsworth.

The result isn’t much different either. Novartis made broad claims about wanting unfettered access to the Facebook account of the plaintiff that took the drug, hoping no doubt for a no-holds barred fishing expedition through the plaintiff’s life.

The court however, stuck to this little thing called relevance, and shot down 99% of the defendant’s fishing attempt. Defendant’s broad demands were for the plaintiff to:

(1) produce the log-in information to his Facebook account and any other social networking websites he may belong to; and

(2) execute a waiver allowing Defendant to directly obtain these materials held in the corresponding databases;

or, in the alternative, directing Plaintiff to produce all photographs added to any social networking website that depict Plaintiff from the date of the development of his alleged injury, regardless of who posted the photograph.

In Childs v Novartis, Magistrate Judge Joel Toomey wrote that Novartis was clearly overreaching, and said that Hollingsworth’s demand was not “reasonably calculated to lead to the discovery of admissible evidence” and that this was “the proverbial fishing expedition.”

As an alternative to striking down the entire request, the plaintiff had suggested that if there were pictures of the plaintiff actually eating (and therefore using his jaw) that might be discoverable, and that is all that the court granted.

A pattern has emerged. And the question is, will Hollingsworth, having now lost twice (that I am aware of), continue to swing away with its wiffle ball bat?

 

 

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3 Responses Leave a comment

  • Dave 2012.3.15 at 12:16 | Quote

    In what type of case could they be allowed access to your personal online accounts?

  • Eric Turkewitz 2012.3.15 at 12:21 | Quote

    If someone testified that they kept a diary, or wrote a letter, or in some other way memorialized an event that was relevant (other than letters to lawyers) then this could be discoverable.

  • crazy tn coos 2012.3.15 at 12:41 | Quote

    I have had ONJ for a year now. I’ve had 2 painful surgeries and am in need of another because bone spurs have grown back and I have infection in jaw. The oral surgeon thought that it was so urgent that he scheduled me for surgery in 2 days. The next day when the receptionist called to remind me of appointment she told me I would have to pay the entire cost of surgery the day of operation. When I told her that was impossible she told me to call back when I had the money. That may never happen as I am buried in medical bills, am going through an ugly divorce where my wife has driven me from my home with abuse and continues to run up debt in my name. As for the man who Novartis tried to invade his privacy to prove he could eat releasing them from liability is ludicrous. I can still eat{we have to eat to live} but it is painful and it takes a lot of work to wash food out of holes in gums and the mouthwash I have to use makes everything taste bad. I also know that I could bite down and break my jaw at any time. My doctors say they’ve never seen anyone go through all that I have and still be alive. I feel that Novartis intentionally poisoned me for profit and now lies about it. Now I am denied treatment because I have no money. I would not want to be one of those greedy S.O.B.s when they face their final judgment.

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