Evolving Issues Of Discovery And Social Media

With social media use at an all-time high, it is not surprising that many courts have been faced with issues regarding whether social media posts are discoverable.  Some litigants contend that messages and posts made on Facebook are private, arguing that because Facebook pages are not public and are made available only to friends, the posts should not be subject to discovery.

The central issue for courts thus often boils down to an issue of privacy.  Courts tend to start from the view that there is no reasonable expectation of privacy when it comes to content shared on social media, no matter how limited or private the account is.  From that baseline, courts then determine if the information sought is relevant.

Some courts have allowed broad discovery of Facebook accounts through requests for production of documents pursuant to Rule 34, setting aside any concerns the requests were too broad.  See EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010).  However, courts generally have been reluctant to grant discovery of social media where the requests are too broad or when there is no evidence indicating relevant information exits.  See Howell v. The Buckeye Ranch, Inc., 2013 WL 1282518 (S.D. Ohio Oct. 1, 2012).

For example, in Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 U.S. Dist. Lexis 2379, the U.S. District Court of Nevada denied Defendant’s motion to compel Plaintiff to release private social media messages. The Court reasoned that the request was a “fishing expedition” because it was nothing more than suspicion and speculation as to what information may be contained in the messages.  Thus, the request  “would allow Defendants to cast too wide a net for any information that might be relevant and discoverable.”  Instead, the Court explained the proper method for obtaining such information would be to serve limited requests for production of relevant communications that contain information regarding the allegations in the lawsuit.

Conversely, in the subsequent case of Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, the U.S. District Court of Nevada granted Defendant’s motion to compel production of the past five years of Plaintiff’s social media content.  In Thompson, Plaintiff alleged extensive personal injuries as a result of a motor vehicle accident due to a defective seat belt and airbag.  Before requesting formal discovery, Defendant obtained public posts on Plaintiff’s Facebook profile.  Plaintiff later changed the profile to private.  Defendant then served formal requests for production of documents, which Plaintiff objected to and provided a redacted copy of Plaintiff’s Facebook account history and a limited number of photographs.

Defendant argued that it had obtained wall posts and photographs posted on Plaintiff’s public profile that provided “evidence of Plaintiff’s post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress — all of which were relevant.”  Plaintiff, on the other hand, argued that Defendant’s requests were merely a “fishing expedition,” contending that Plaintiff had already provided all materials relevant to Plaintiff’s claim.

The Court determined that evidence relating to Plaintiff’s physical capabilities and social activities was relevant to Plaintiff’s claims due to Plaintiff’s allegations that severe physical injuries, emotional distress, and impaired quality of life were consequences of the alleged injuries.  Thus, the Court ordered Plaintiff to upload ALL of the information from Plaintiff’s social media accounts from the past five years to provide to Defendant’s counsel with an index of redacted social networking site communications.

As illustrated in Thompson, social media can have a colossal impact in lawsuits.  With social media becoming a part of every day life, litigants who have an adequate understanding of social media and the advantage of possibly incorporating it into the litigation process will be in a better position to advocate for their clients.