FRANKFORT, Ky. (Legal Newsline) - A Kentucky couple who sued the hospital that delivered their son after he died from a brain injury lost their request to block a subpoena for nine years of Facebook posts, with the state’s highest court saying they wouldn’t suffer any irreparable harm by turning it over.
Latrice and Anthony Johnson sued Norton Healthcare in 2017 shortly after their son died from complications of a severe hypoxic-ischemic brain injury he suffered during a caesarian section birth in 2012. Less than a month after they sued, Norton filed discovery requests including “all data downloaded from your Facebook account” including “wall posts, photos, videos, notes” and other information.
Almost three years later, the Johnsons objected to the request as unduly burdensome, harassing and beyond the scope of normal discovery. The trial court rejected their objections and ordered them to supply the requested data. The Johnsons then appealed, and when the court of appeals rejected their application, sought a writ of mandamus from the Kentucky Supreme Court to block the order from being carried out.
That gambit failed, as the state Supreme Court rejected their arguments in an opinion published Sept. 22.
The court first noted that “writs are extraordinary remedies, which interfere with `both the orderly, even if erroneous, proceedings of a trial court and the efficient dispatch of our appellate duties.’” In order to halt the discovery order, the court said, they must show the lower court is not only acting incorrectly but that “great injustice and irreparable injury would result” unless it is stopped.
Unfortunately for the Johnsons, the Kentucky Supreme Court upheld an almost identical request for social-media posts in 2018.
“Given that the Johnsons have put their mental and emotional state directly at issue in this litigation, Norton’s discovery request for their social media accounts is reasonable,” the high court concluded.
The court also criticized the Johnsons and their lawyers for their “own tardiness in responding to the interrogatories.”
“The Johnsons’ objection that the period Norton seeks access to is overly broad is a direct result of their own failure to move the litigation along in a timely fashion,” the court said in the unanimous opinion.