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Anthem 401(k) Investor Ordered to Disclose Facebook Messages

June 15, 2018, 7:02 PM

A participant in Anthem‘s 401(k) plan must disclose to the company’s attorneys some of her Facebook private messages concerning her lawsuit accusing Anthem of allowing excessive fees in the plan.

The Facebook private messages—which discussed the participant’s emotional status over her upcoming deposition, a future meeting with the attorneys, and that she wanted to be a “good representative"—are discoverable documents, Magistrate Judge Matthew P. Brookman of the U.S. District Court for the Southern District of Indiana held June 14.

Brookman, however, denied Anthem’s request to compel the participant to produce a 2015 Facebook post capturing a screenshot related to an attorney seeking members of Anthem’s 401(k) plan to be lead plaintiff in a proposed class action. In denying the request, he explained that on its face and without more detailed explanation, he didn’t see the relevancy of the post.

Brookman’s ruling on this discovery issue might be the first of its kind in cases where workers challenge their employers’ decisions to allow excessive fees and imprudent investments in their retirement plans.

Discovery requests involving social media posts and messages of plan participants who serve as plaintiffs in excessive fee cases have become more prevalent in recent years, Nancy G. Ross, a partner in Mayer Brown’s Chicago office told Bloomberg Law June 15. Court rulings over these issues, however, are still unusual as the parties generally resolve discovery disputes outside the court, Ross said. She serves as co-chair of Mayer Brown’s Employee Retirement Income Security Act litigation practice.

It started within the last decade when the plaintiffs’ bar began using social media, like Facebook and Instagram, to identify and target potential plaintiffs in litigation, Ross said. Since then these types of discovery requests have become more common, she added. The plaintiffs usually argue that this material is privileged, but the law is unsettled in this area, Ross said.

In general litigation, discovery requests for social media messages have grown exponentially over the years and will continue to increase because that is how people are communicating, Bradley S. Shear, managing partner of Shear Law, told Bloomberg Law June 15. Shear focuses on technology and privacy law.

Parties to litigation need to understand that almost anything posted on Facebook and other social media platforms may be fair game, Shear said.

Schlichter Bogard & Denton LLP represents the workers. Seyfarth Shaw LLP represents Anthem.

The case is Bell v. Pension Comm. of ATH Holding Co., S.D. Ind., No. 1:15-cv-02062-TWP-MPB, order on defendants’ motion to compel production of certain documents 6/14/18.

To contact the reporter on this story: Carmen Castro-Pagan in Washington at ccastro-pagan@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com