Co-authored by: Gil Keteltas

Is social media relevant to the claims or defenses at issue in your litigation?  If so, is it within your possession, custody, or control?  And, if so, is there anything else that may preclude or limit discovery of social media content? 

There seems to be a lot of hand-wringing regarding discovery of electronically-stored information (ESI) on social media websites, such as Facebook and Twitter.  While not without its fair share of novel and thought-provoking issues, the discoverability of ESI from these or other social networking sites is determined by answering the same questions that have always been posed in discovery, beginning with relevance.

Don’t let new technology overcome common sense.  Whether a discovery request seeks a paper document, a part from an automobile, or a Facebook post or “tweet,” the request must pass the same threshold: relevance.  Federal Rule of Civil Procedure 26(b) restricts discovery to any “nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”  State procedural rules have a similar threshold.

So, for example:

  • In Lester v. Allied Concrete, a widely discussed Virginia state circuit court case, a husband sought damages following the death of his wife in an accident.  He claimed ongoing emotional distress.  Defendants obtained a photo from the plaintiff’s Facebook account that, according to the Court, depicts plaintiff “clutching a beer can, wearing a T-shirt emblazoned with ‘I [heart] hot moms’ and in the company of other young adults.”  The court, concluding that the photo and other information on plaintiff’s page were relevant to plaintiff’s damage claims, found spoliation because plaintiff “cleaned up” his Facebook page at the instruction of his counsel, who did not “want blowups of this stuff at trial.”
  • In Quiqley Corporation v. Karkus, an Eastern District of Pennsylvania court found that Facebook “friend” status was not relevant to the question of whether defendants’ – who were friends on Facebook – constituted a group subject to disclosure requirements under Section 13(d) of the Securities and Exchange Act.  The court found that “the site’s designers’ selections of icons or labels offer no substance to this dispute,” and suggested that “friendships on Facebook may be as fleeting as the flick of a delete button.”

In addition, where a party has a basis to seek discovery of relevant information from social networking sites, its request for such information must be targeted so that it is “reasonably calculated to lead to the discovery of admissible evidence.”  Fed. R. Civ. P. 26(b)(1).

In EEOC v. Simply Storage, the Southern District of Indiana limited broad requests for social networking communications and profiles from two individuals who alleged that Simply Storage was liable for sexual harassment by a supervisor.  Simply Storage sought information the claimant’s Facebook and MySpace accounts because they believed such information was relevant to “emotional health” claims raised by EEOC.  But that post hoc rationale for the requests was far more limited than the requests themselves which requested, among other things:

  • “All photographs or videos posted by [claimant] or anyone on her behalf on Facebook or MySpace from April 23, 2007 to the present”;
  • “Electronic copies of [claimant’s] complete profile on Facebook and MySpace (including all updates, changes, or modifications to [claimant’s] profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications . . . for the period from April 23, 2007 to the present.”

The district court’s analysis of these requests was rooted in a classic approach to relevance under Rule 26:

Discovery of SNS [social networking sites] requires the application of basic discovery principles in a novel context. . . . At bottom, though, the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular.  Rather, the challenge is to define appropriately broad limits – but limits nevertheless – on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.

The district court judge agreed that the social networking content may be relevant, but noted that, although “the contours of social communications relevant to a claimant’s mental and emotional health are difficult to define, that does not mean that everything must be disclosed.”  The court concluded that the “appropriate scope” of discovery for claimants’ social networking communications, photographs, and videos was limited to those that “reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”

Bottom line – an analysis of discovery requests for social media content should begin with the threshold question of relevance.  Above, we’ve just scratched the surface of the case law. Useful summaries of key cases in this area can be found here and here.

In an upcoming post, we’ll take a look at fundamental #2 – is the information requested from a social networking site within the party’s possession, custody, or control?