Social media may contain a treasure trove of evidence bearing on claims in litigation, but parties must take care to tailor their discovery requests to information that is both relevant and proportional to the needs of the case.
This article was published in the American Bar Association Section of Litigation on October 5, 2018.
This article was published in Law360 on November 17, 2017. © Copyright 2017, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.
Social media users create a candid digital record of their experiences, thoughts and feelings. Such information may be relevant in litigation and crucially has not been subject to a lawyer’s filter. For example, as the cases below show, vacation photos shared on social media can effectively undermine a claim that an injury has rendered a plaintiff unable to enjoy life. Likewise, defendants’ or their employees’ interactions on social media may serve as the basis for a discovery request for social media or undermine a defense. Courts have consistently held that social media accounts are subject to established discovery principles but are reluctant to allow parties to rummage through private social media accounts. Accordingly, requests for access to information from Facebook, Twitter, Instagram, Snapchat and other social media platforms must be carefully tailored.
In a recent case, the defendants sought all social media in its native format relating to the plaintiff’s travel and social activities. The court denied the request because it was not limited by substance or time frame and because the requesting party had not made a sufficient showing of relevance to justify production in native format. This case and other recent cases in federal and state courts provide a few practice pointers for social media discovery:
In re Cook Medical IVC Filters Marketing, Sales Practices & Products Liability Litigation
The plaintiffs in the IVC Filters1 multidistrict litigation claimed they were injured after using an implanted inferior vena cava (IVC) filter. In this bellwether case, the defendants sought a copy of a plaintiff’s Facebook account in native format, including metadata, that was provided to the plaintiffs’ expert. The plaintiff objected because she had already provided relevant content from Facebook in PDF format.
The district court recognized that a requesting party may specify its desired format for information but denied the motion to compel reasoning that native format social media data contains “considerably more information — namely metadata, which provides much more private information. The metadata contained in native files gives the who, what, when, where, and how of the making of a post, including metadata from non-parties.”2The court found that native format was “entirely different and too intrusive,”3 and denied the defendants access to native files, finding that they had not made a sufficient showing. To the extent that the defendants sought native Facebook data because the plaintiffs’ expert relied on its metadata, the court suggested that the defendants “promptly make and justify any request for specific native file posts.”4
Turning to the specific requests for social media information, the court stated that the plaintiff has no expectation of privacy in her public social media accounts but held that the plaintiff was not required to produce what the defendants could obtain through an internet search.5 Private social media accounts, however, require a more involved analysis as the requesting party must show that its request for information is relevant and proportional to the case.
The court examined the defendants’ request for social media information regarding travel, hobbies, social activities and claims and damages from the date of the IVC surgery to the present. Because the defendants would be entitled to serve interrogatories asking questions on the same topics the court compelled the plaintiff to respond to the defendants’ requests.6 The court, however, denied the defendants’ demands for screenshots of all the plaintiffs’ social media posts following the surgery because the request was not limited by subject matter.7
Other Federal Cases
The law surrounding discovery of social media is evolving rapidly.8 Courts consistently wrestle with the explosion of social media and its implications for discovery requests. The cases discussed below — all decided since the 2015 amendments to the Federal Rules of Civil Procedure which require that all discovery be both relevant and proportional to the needs of the case — confirm that requests for social media must meet those criteria.9 In the wake of those amendments courts have required discovery requests for social media to be narrowly tailored in both time and scope and have required an additional showing to justify production of private data or production in more intrusive formats.
Requests Must be Narrowly Tailored
In Crabtree v. Angie’s List Inc.10 the plaintiffs alleged that they were wrongfully denied overtime compensation. The defendant requested all emails, messages and social media posts that related to attendance at or absence from work during the one-year period the plaintiffs were employed.11 The plaintiffs objected and the court denied the request, reasoning that the defendant had “not shown how emails, text messages or social media posts from this one-year period may be more probative as to these issues than other less intrusive data already within its control, such as the Salesforce.com data, computer login or badge swipe data.” Additionally, the court found that the scope of information sought was “plainly not proportional to the needs of this case.”12
In Ye v. Cliff Viessman Inc.13 the plaintiff sued a trucking company following his daughter’s death in a tractor-trailer accident. The defendants sought a complete archive of the Facebook pages of the decedent and several family members. The court cautioned that Facebook and other social media platforms present a unique challenge — the amount of information potentially subject to discovery is huge, data is retained for a long period of time and the number of people a user can communicate with is potentially limitless.14
While some of the requested Facebook data was relevant to the claims at issue, the court reasoned that the defendants had not limited their request to a relevant time period or to content relevant to the claims or defenses. Discovery of a full Facebook profile, the court concluded, would give “a generalized right to rummage at will through information that [the decedent and her next of kin had] limited to public view.”15
The district court said that courts “are reluctant to compel all-encompassing social media requests unless they are limited in scope to content that is relevant to a claim or defense in the case.” The defendants’ requests in Ye were flawed because they were not limited to a reasonable period of time. Without more information from the defendants the court was “reluctant to approve such a fishing expedition.” It is possible to imagine a request more narrowly tailored to relevant content, the court noted, but it is not the court’s role to tailor or rewrite discovery requests for defendants.
In contrast, the court in Scott v. U.S. Postal Service16 reframed the discovery request. The defendant requested that the plaintiff, who alleged “continuing, severe personal injuries,” (1) identify all social media sites she had used since the date of the accident as well as her usernames and times of use and (2) produce all postings related to any type of physical or athletic activities since the time of the accident.17 The court found that the requests sought relevant information but were too broad.18 The court modified the first request to require the plaintiff to provide the sites and her usernames but only the last time she had been on each site, not the total time she had spent on each site.19 With regard to the second request, the court ordered the plaintiff to produce any postings since her accident that related to her injuries or reflected physical capabilities that were inconsistent with the injuries alleged.20
In United States ex rel Feaster v. Dopps Chiropractic Clinic LLC21 the court also narrowed the defendant’s social media discovery request. The plaintiff asserted claims of employment discrimination and Medicare fraud. The defendant requested that the plaintiff identify each social media post he had deleted since his resignation. The plaintiff objected, stating he had already produced every post or message referring to his work with the defendant as well as his entire Facebook page. The defendant contended the request was reasonably limited in time and only asked for deleted posts. The court nonetheless held the request was too broad, suggesting that to grant the defendant’s request would be to “allow Defendant unfettered access to rummage through Plaintiff’s garbage.”22 The court emphasized that discarded social media postings are discoverable, held that the information requested was proportional23 and yet still limited the defendant’s request to only posts deleted or altered since the plaintiff’s resignation that referenced the defendant or his employment.24
The court in Roberts v. Clark County School District reasoned that “[a] change in the legal culture that embraces the leave no stone unturned and scorched earth approach to discovery is long overdue.”25 In that case the plaintiff was a transgender man who asserted claims for gender discrimination and retaliation. The defendant sought all of the plaintiff’s personal email addresses and social networking information. The court ruled that the request was “overbroad and not narrowly tailored to obtain discoverable information on social media about Roberts' emotional distress relevant to this lawsuit or other factors in his life that may have contributed to his emotional distress during the time period in dispute.”26
The court ordered the plaintiff to identify all the social media sites he used and produce any content that referred to the lawsuit, the plaintiff’s gender transition and the manner in which he was treated by the defendant or its employees.27 The court emphasized that the plaintiff was not alleging damages from his gender transition but rather from the defendants’ actions thereafter, so social media content posted before that time was not relevant or proportional.28
State courts are subject to their own rules of civil procedure, but they generally follow the same approach as federal courts to social media discovery, requiring requests to be relevant to the claims at issue and reasonably particular.
In a case of first impression the court in Brogan v. Rosenn Jenkins & Greenwald LLP rejected the plaintiffs’ request for the Facebook login information of a nonparty employee of the defendant.29 Discovery revealed that a former employee of the defendant exchanged Facebook messages regarding his subpoena with a current employee. The defendant produced those messages but at her deposition the employee did not identify the former employee as one of her Facebook “friends.” The plaintiffs argued that the employee lied under oath.
Noting a lack of Pennsylvania appellate guidance, the court found that there is no established right to privacy for social media but that the party requesting such discovery must make a threshold showing of relevance.30 The court found that the employee’s failure to identify the former employee as a “friend” did not establish the relevance of her social media accounts beyond the previously produced messages.31 The plaintiffs were not entitled to unfettered access to the current employee’s Facebook account.32
In Forman v. Henkin the plaintiff alleged that the defendant’s failure to properly prepare a horse for riding caused her to sustain “cognitive and physical injuries that have limited her ability to participate in social and recreational activities.”33 The defendant sought discovery of all photographs, messages and posts on the plaintiff’s Facebook page which was no longer active. The court found that the defendant did not establish relevancy, noting that the mere existence of a Facebook profile does not indicate that it contained relevant information. The court noted that defendant’s counsel said he searched the plaintiff’s public Facebook profile before it was deactivated and found nothing of value.34
Social media may contain a treasure trove of evidence bearing on claims in litigation, but parties must take care to tailor their discovery requests to information that is both relevant and proportional to the needs of the case. Defendants should also be mindful that their own social media may be subject to discovery. The practice points set forth above will help ensure that requests comply with both the amended Federal Rules of Civil Procedure and evolving case law, resulting in the best possible outcome.
1 In re Cook Medical, Inc., 2017 U.S. Dist. LEXIS 149915 (S.D. Ind. Sept. 15, 2017).
2 Id. at *8-9.
3 Id. at *8 (The issue, then, was “not whether the ESI is more easily processed in one format or another, but whether one format is entirely different and too intrusive.”).
4 Id. at *9.
5 Id. at *10-11.
6 Id. at *12.
7 Id. at *13.
8 As recently as 2010, a court observed that, “despite the popularity of [social media] and the frequency with which this issue might be expected to arise, remarkably few published decisions provide guidance on the issues.” Equal Employment Opportunity Comm’n v. Simply Storage Mgmt., LLC, No. 09-CV-1223-WTL-DM (S.D. Ind. May 11, 2010).
9 Fed. R. Civ. P. 26(b)(1).
10 2017 U.S. Dist. LEXIS 12927 (S.D. Ind. Jan. 31, 2017).
11 Id. (citing Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 931 (7th Cir. 2004) (“of course pretrial discovery is a fishing expedition and one can’t know what one has caught until one fishes. But Fed.R.Civ.P. 45(c) allows the fish to object.”)).
12 Id. at *13.
13 2016 U.S. Dist. LEXIS 28882 (N.D. Ill. March 7, 2016).
14 Id. at *4-5.
15 Id. at *9.
16 2016 U.S. Dist. LEXIS 178702 (M.D. La. Dec. 27, 2016).
17 Id. at *4.
18 Id. at *10. The court so found despite ruling that plaintiff had waived any objections by asserting only unacceptable general objections belatedly. Id. at *8-10.
19 Id. at *13-14.
20 Id. at *14. The court detailed the process to ensure the plaintiff’s search was complete, including downloading all historical data available from her social networking accounts. Id.
21 2017 U.S. Dist. LEXIS 36043 (D. Kan. Mar. 13, 2017).
22 Id. at *4.
23 Id. at *4-5.
24 See also McDonald v. Escape the Room, 2016 U.S. Dist. LEXIS139203, *12 (S.D.N.Y. Sept. 21, 2016) (Defendant’s requests were appropriately limited to plaintiff’s postings only, and limited to allegations of pain, anguish and mental suffering from the date of incident. The requests were sufficiently “proportional to the needs of [the] case considering the substantial amount of damages the plaintiff [sought].”)
25 2016 U.S. Dist. LEXIS 3590, *23 (D. Nev. Jan. 11, 2016) (citing Fed. R. Civ. P. 26(b)(1)).
26 Id. at *37.
27 Id. at *37-38.
28 See also Ehrenberg v. State Farm Mut. Auto. Ins. Co., 2017 U.S. Dist. LEXIS 132036 (E.D. La. Aug. 18, 2017) (After weighing relevance and proportionality, court limited defendant’s requests to seven categories of information, all linked to the accident, plaintiff’s alleged injuries and post-accident vacations. )
29 2013 Pa. Dist. & Cnty. Dec. LEXIS 171 (Lacka. Co. 2013).
30 Id. at *13-21.
31 Id. at *25-26.
32 Id. at *31 (court compared particularity of requests granted in other instances to plaintiffs’ broad request for “carte blanche” access).
33 2015 N.Y. App. Div. LEXIS 9353 (1st Dept. 2015).
34 Id. at *6.
Matthew Hamilton and Donna Fisher are partners in Pepper Hamilton’s Health Sciences Department, a team of 110 attorneys who collaborate across disciplines to solve complex legal challenges confronting clients throughout the health sciences spectrum. Jessica Bae is an associate in the Health Sciences Department.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.