In my opinion of December 10, 2010 I said, in sustaining the objection, “The order sought by the defendants herein is too broad, being unlimited in time or subject matter or privileged status, and lacks any probable showing that there is anything actually stored on the parents' computer which would be relevant to this case or lead to the discovery of admissible evidence, or that plaintiffs would be unable or unwilling to disclose any such information if it does exist on their computer.” Squeo, supra,
at 1255. Defendants claim that they have now demonstrated: “(a) the extent to which the decedent had spent time accessing social networking sites from [the parents'] personal computer; and (b) the parents' apparent lack of will and/or ability to retrieve and disclose any relevant information that exists on their computer.” [Second] Motion to Inspect, October 21, 2011 (No. 250). Aside from mere assertions of those claims, however, there is little in the way or factual evidence to support them. After the court's initial ruling the defendants served on December 30, 2010 a followup production request asking the plaintiff parents to produce all electronic files created, drafted, generated, saved, or otherwise stored on their computer by their deceased son Stephen. The parents responded on February 16, 2011 saying that they checked Stephen's email account and provided certain documents to their attorney.
Defendant then served followup interrogatories asking plaintiffs to explain the manner of their inspection or search of their computer and whether or not they requested or employed the assistance of anyone else in conducting that inspection or search. Plaintiffs answered that they did not seek or request the assistance of anyone else and that “The computer utilized by Stephen is no longer in use because it is outdated and crashed several times. When it was operating, I checked Stephen's email account and I provided my counsel with those emails. Stephen did not store anything on the computer and Stephen infrequently used the computer. All MySpace correspondence was also provided to my counsel.” Plaintiffs and their daughter, Stephen's sister, are providing authorizations for defendants to obtain copies of records including but not limited to messages from August 2006 through August 2007 directed to AOL, Facebook, and MySpace. This court (Mottolese, J.) has granted motions for the appointment of commissions to issue subpoenas and conduct depositions of Facebook and MySpace. Facebook has proposed a Consent Order pursuant to which they would produce records. AOL has requested a notarized consent signed by Stephen's sister Regina Squeo who was the billing contact on the AOL account. Plaintiffs are in the process of obtaining for the defendants that consent from Ms. Squeo who lives in Texas. Defendants state concerns without any factual basis that these companies will produce “some” but not “all” documents in response to subpoenas to be served upon them. Defendants also profess without any factual support that these social network sites would not “have access to documents and other data that is stored on the plaintiffs' computer, which is likely to contain different information” and that “plaintiffs have conducted only a perfunctory search of their computer.” The only actual fact alleged by the defendants in support of these assertions is that the plaintiffs in their Objection to Production dated March 8, 2011 (No. 219) stated that “Decedent Stephen Squeo did not have a MySpace account but rather was on his sister's account,” but defendants claim “In fact, the decedent had maintained a MySpace account separately from his sister's account, and the decedent's brother now controls the content of the decedent's account.” In support of that statement they cite Docket Entry No. 220, which is their March 18, 2011 reply to plaintiff's foregoing objection to production of documents to which they attach copies of pages from two separate MySpace Accounts in the names of “Stephen Squid” and “Regina.” This one simple mistake, if was a mistake of the parents, does not establish, as defendants claim, the parents' “apparent lack of will and/or ability to retrieve and disclose any relevant information that exists on their computer or the extent to which the decedent had spent time accessing social networking sites from his parents' computer.”