The abundance of information available on social media websites has changed the landscape of discovery in civil trials. A simple Google search can indicate whether a person has a Facebook, MySpace, LinkedIn or other social medical account with little effort. Informally, using Google can yield not only publicly available information, such as stories about a person in an online publication, but can also lead to avenues of further investigation. An opposing party’s use of social media can uncover many relevant pieces of evidence that might otherwise be undiscoverable.
The overall trend in trial court favors relevancy of social media information over the privacy of users. For instance, in E.E.O.C v. Simply Storage Mgmt., LLC, 270 F.R.D 430, 434 (S.D. Ind. 2010), the court held social media content was not shielded from discovery simply because the information was “locked” or “private.” See also Ledbetter v. Wal-Mart Stores, Inc., D. Colo. No. 1:06-cv-1958 (Nov. 2009) (ordering production of email and other communication from Facebook, MySpace and Meetup.com) and Beye v. Horizon Blue Cross Blue Shield of N.J., D.N.J. No. 2:06-cv-5337 (Dec. 2007) (ordering plaintiff’s in class action lawsuit to preserve and produce “writings shared with other individuals, including entries on websites such as Facebook or MySpace” because they may be relevant to the core issues in the case).
Obtaining information directly from social networking sites can be difficult, given that federal law and Facebook policies prohibit the disclosure of user information. Specifically, the Stored Communication Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of a user’s Facebook account to any non-governmental entity even pursuant to a valid subpoena or court order. The most Facebook can provide is the basic subscriber information for a particular account. Generally, litigants utilize four methods in an effort to obtain an opponent’s private social media content: (1) subpoenaing the content directly from the social media company; (2) requesting the opponent sign an authorization to release the private social media content; (3) requesting the opponent’s usernames and passwords; and/or (4) requesting production of private social media content directly from the opponent. Because of the Stored Communications Act, social media companies are unlikely to respond to civil subpoenas that seek a user’s private content without a user’s consent. Therefore, litigants typically obtain access to an opponent’s private social media content through methods (2), (3) and (4).
The case of Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009) is insightful on whether discovery requests for social media content are considered reasonably calculated to lead to the discovery of admissible evidence. In Bass, during discovery the Defendant sought documents from Facebook related to alleged teasing and taunting of the Plaintiff. The Plaintiff subpoenaed the information requested from Facebook but argued that the information sought was irrelevant and immaterial. The court ordered the Plaintiff to produce documents from Facebook that were responsive to the Defendant’s discovery request. The Court also ordered the Plaintiff to provide a full set of documents received from Facebook pursuant to the subpoena for in camera review by the Court. The Court reviewed the documents and determined that the information could lead to the discovery of admissible information. Accordingly, all Facebook documentation was turned over to the Defendants.
Some effective methods of obtaining discovery of the contents of a party’s social networking profile are propounding specific, well-tailored discovery requests to the party. Refrain from being excessively global in the discovery requests (e.g., “all contents of any and all social media profiles of John Doe”) and instead be specific in what is sought, and tie it to the claims or defenses in the case. For instance, instead of just a blanket request for all content, seek “all online profiles, postings, messages (including, but not limited to, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams and blog entries), photographs, videos and online communication” relating to particular claims, allegations of mental anguish or emotional distress, defenses, et cetera.
Should you have any questions, please contact your regular Hall Render attorney.
