First, some anti-maskers sued a store over its mandate. Now, they are losing discovery disputes and getting sanctioned.

Like many of you, news of the untimely death of Michael K. Williams shook me. RIP.

I thought more about Mr. Williams yesterday as I read two reports and recommendations from a Discovery Special Master assigned to a COVID-19 face mask case. Specifically, I remembered his infamous line as Omar Little from The Wire:

“You come at the king; you best not miss.“

In the case I’m blogging about today, the king is the defendant, a chain of supermarkets that required all customers in Spring 2020 — we’re talking early COVID, statewide mask mandates, and several months before vaccinations — to wear face coverings. The mandate also covered individuals with documented medical issues.

The ones that came at the king are ~~Stinkum and Wee Bey~~ several plaintiffs that filed a federal civil action alleging that a grocery store’s inflexible mask policy violated Title III of the Americans with Disabilities Act. I blogged about the origins of this lawsuit here.

A few months later, I blogged here about the judge denying the plaintiffs’ request for an injunction. Specifically, he concluded that: (1) the plaintiffs were not likely to prevail on the merits; (2) they had presented no medical evidence to support any disability claims — let alone anything to prevent wearing a mask; and (3) a face-covering requirement in the middle of 2020 was needed to protect the health and safety of others.

And then there are the plaintiffs’ social media posts, like:

“I don’t mind wearing a mask, if someone tells me polite (sic).”
“I’m in excellent health with the exception of a herniated disk in my neck.”
“There are no laws stating I must wear a mask so, (sic) it can rest entirely on my Constitutional right to refuse.”
“This is my country and I’m a free man. Anyone that tries to take that for (sic) me is a tyrant.”

You’d think that with the damning social media and taking the “L” on the injunction, the plaintiffs would drop the case.

Many actually did. But, others have stuck around. And that brings us to this update.

Hannah Albarazi at Law360 reports here that “a court-appointed special master overseeing discovery disputes in a challenge to [the supermarket’s] COVID-19 mask mandate has recommended that several shoppers be compelled to turn over private Facebook messages about the case and pay part of the [defendant’s] legal costs as a sanction.”

You can read the Special Master’s R&R’s here and here.

Here are my takeaways:

Privacy? What privacy. If you’re going to bring a lawsuit, your medical records, social media content, text messages, and other communications that may relate to the subject matter of the lawsuit are pretty much all fair game. Yes, that includes the status updates on a “private” Facebook group. No, you can’t claim that you don’t know how to access them anymore. If a reasonable search will turn them, then you must conduct a reasonable search.
As the lawyer, you have a duty to help your client search for electronically stored information. Rule 1.1 of the Model Rules of Professional Conduct requires attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” If you don’t know to search a client’s text messages, hire someone to do it.
Mess around with the Federal Rules of Civil Procedure governing discovery and find out about sanctions. The Discovery Special Master recommended sanctions against two of the plaintiffs in the form of an award of reasonable attorneys’ fees and costs incurred in preparing for and participating in two (2) conferences with the Discovery Special Master, the preparation of Defendant’s Motion to Compel, and the preparation of the Motion for Sanctions as a result of their respective failures to timely produce documents. That total bill will be several thousand dollars, which could be several thousand dollars more than the zero they will collect if they lose the lawsuit.