In addressing the discoverability of social media, we typically analyze three questions:  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, finally, is there anything else that may preclude or limit discovery of social media content?

In two previous posts, we looked at the threshold question of relevance and when information on a social networking site is within a party’s possession, custody, or control.  Here, in our final post of this series, we consider other principles that may preclude or limit discovery of social media.

Important questions to ask:

–      Although unlikely, do any privilege or privacy interests preclude production?

–      Does the Stored Communications Act prohibit production?

–      Is the First Amendment right to anonymous speech implicated?

  • Privilege and Privacy

Many social media websites have privacy settings.  Facebook, for example, permits users to choose what content is private and what content is publicly available to anyone browsing the internet.  Users also may choose how widely they share “private” content (with all Facebook users, with all friends and friends-of-friends, or only with friends).  Even with these privacy settings, however, it is difficult to square the concept of social media with conventional views of privacy because social media is, by definition, information shared with other people.

Indeed, a number of courts have observed that a user of social media has no or, at best, a lesser reasonable expectation of privacy when voluntarily disclosing information.  When weighed against a showing that non-public information is reasonably likely to contain relevant evidence, courts will permit discovery of the “private” social media.  Courts will not, however, permit carte blanche access to non-public social media.  Parties seeking discovery must establish that the social media being sought is relevant or potentially relevant.

  • Stored Communications Act

Parties may seek discovery of both content and non-content social media information.  Content information typically is material posted on or uploaded to a social media website (e.g., Facebook post).  Non-content information includes things like social media activity logs (login times, dates and times of modifications, etc.).  Internet service providers (ISPs) that host social media websites will be in possession of all such information, making them a target for third party subpoenas seeking social media-related discovery.  But ISPs cannot share user information without limitation.

The Stored Communications Act (SCA) generally prohibits a service provider from disclosing the content of electronic communications that it transmits or holds in storage for its users.  Courts have found that the SCA applies to social networking sites like Facebook and MySpace where the user’s information is not publicly available.  There are exceptions in the SCA permitting disclosure, but few typically apply in civil litigation.  In most circumstances, an ISP cannot disclose social media content without the “lawful consent” of the social media user.  Thus, an ISP may resist disclosure in response to a third-party subpoena seeking information not owned by the provider.  Or a social media user may file a motion to quash such a subpoena.

Although the prohibitions of the SCA appear broad, there are some chinks in the armor.  First, as to content information, some courts have ordered parties subject to a Rule 34 document request to provide their ISP consent to disclose electronic communications on the theory that the communications are under the litigating party’s “control.”  Second, as to non-content information, the SCA allows ISPs to disclose customer records or other customer information “to any person other than a governmental entity.”  This may permit disclosure of information such as social media login information or activity logs.  It remains to be seen whether this exception could be read to permit disclosure of information that may straddle the line between content and non-content data.  For example, in the case of a Facebook user, whether an ISP could disclose, as non-content data, a list of the user’s Facebook friends, or a list of the Facebook groups to which the user belongs.

  • First Amendment

People have the right and the ability to post online content anonymously, making it difficult to learn the identity of an anonymous poster.  It may be worth the effort, however, if the anonymous poster is an important third party witness.  Such cases are rare, but when they arise, courts have found that the party seeking to identify the anonymous poster must show a “compelling need for the discovery” that “outweighs the First Amendment rights of the anonymous speaker.”  This standard may not be met where, for example, information is sought for the purpose of impeachment, or where the information may be obtained from other sources.