Discovery requests involving social media posts/messages/etc. of plan participants serving as plaintiffs in excessive fee cases are becoming more commonplace since plaintiffs’ bar started using social media, such as Facebook and Instagram, to target potential plaintiffs for litigation. In the Anthem case, the participant’s Facebook private messages, regarding the excessive fee lawsuit she was alleging against Anthem, were discoverable. However, in this particular case, the judge denied Anthem’s request to obtain a Facebook post related to an attorney seeking members of the 401(k) Plan to be lead plaintiff in a proposed class action, citing that on its face, and without more detailed explanation, he could not see the relevancy.
www.bna.com; June 15, 2018.