Wrongful Death Litigation Arising Out of the Continental Connection Flight 3407 Accident: A Federal Court Compels Plaintiff to Produce a Broad Array of Damages Discovery, Including Social Media

We are living in the midst of a social media revolution that is changing the way individuals, companies and governments organize, navigate and share information, as well as the very nature of privacy. As is becoming increasingly apparent, the information contained in a person’s social media account can have a profound impact on the outcome of litigation. However, U.S. plaintiffs’ counsel have consistently argued that defendants are not entitled to discovery of a decedent’s or a claimant’s social media accounts in a wrongful death lawsuit. Their position has been based, in part, on the fact that no reported U.S. decision has directly addressed the discoverability of social media in a wrongful death lawsuit. As a result of the December 17, 2011 decision by the U.S. District Court for the Western District of New York in In Re: Air Crash Near Clarence Center, New York, on February 12, 2009, No. 1:09-md-02085-WMS (W.D.N.Y. Dec. 17, 2011), which finds that social media accounts are subject to discovery in these lawsuits, such an argument is increasingly untenable.

The decision involves the February 12, 2009 crash of Continental Connection Flight 3407, operated by Colgan Air, while on final approach to Buffalo Niagara International Airport, which killed all 49 people on board and one person on the ground. Plaintiff Xiaojun Pan commenced a wrongful death lawsuit on behalf of his wife, Shibin Yao, who was a passenger on Flight 3407, against Colgan, Pinnacle Airlines Corp. (Colgan’s parent company) and Continental Airlines. (Bombardier, Inc., the manufacturer of the subject Q400 aircraft, is a defendant in a separate lawsuit commenced by Plaintiff Pan.)

The Court’s decision arose from a dispute relating to the permissible scope of damages discovery in Plaintiff Pan’s wrongful death lawsuit. Specifically, Defendants contended that Plaintiff had failed to produce records essential to Defendants’ defense of the lawsuit and preparation for trial, including documents relating to the health and financial condition of the decedent and claimant family members, as well as the decedent’s lost earnings, personal consumption and financial support of the claimants. The outstanding discovery also included information and documents necessary to determine the domicile of the decedent, who was a Chinese citizen residing in the United States on a secondment with PricewaterhouseCoopers New York at the time of the accident. The decedent’s domicile is an important issue in the case because of its implications for the applicable compensatory damages law and, correspondingly, Plaintiff’s recoverable damages.

Defendants filed a motion to compel proper discovery responses from Plaintiff Pan. In its decision, the Court ordered Plaintiff to produce a wide variety of discovery relevant to his damages claim, including the decedent’s and the claimants’ checking, bank, credit card, debit card, investment, medical and electronic communications records. Although it is beyond the scope of this Alert to address all aspects of this decision, we now address a particularly significant aspect of it, namely, the fact that the court ordered Plaintiff to produce the decedent’s and the claimant’s emails, social media accounts, text messages and instant messages.

In so ruling, the court rejected Plaintiff’s objection that the discovery request for these electronic communications sought irrelevant information, was barred by the Stored Communications Act (18 U.S.C. § 2701), constituted an invasion of privacy and was overly broad. The court stated that there could be “little doubt” that the information sought from these electronic communications, i.e., information relating to the decedent’s domicile and her financial support of the claimants, was relevant.

Similarly, the court stated that the Stored Communications Act, which prohibits unauthorized access to stored electronic communications (see 18 U.S.C. §§ 2701-2712), does not prevent Plaintiff Pan, as the authorized representative of the decedent’s estate with possession, control and authority over the decedent’s property, from being able to secure responsive electronic communications. Moreover, the Court noted that the Stored Communications Act permits access to electronic communications taken in good faith pursuant to a court order.

In addition, the court rejected Plaintiff’s argument that production of the decedent’s electronic communications would be an invasion of her privacy. The court found that there is no common law right to privacy in New York and that any privacy interests generally cease upon death. The court also stated that Plaintiff has the option of producing the responsive electronic communications subject to a protective order regarding confidential information that has been issued in the Flight 3407 litigation.