27 Jan Specific Issues in E-Discovery: Seeking Discovery of Social Media

In today’s blog we tackle the discovery of a certain type of electronically-stored information—social media.  The contents of a party’s social media activities are becoming more and more the subject of discovery requests during litigation.  However, it is critical that your attorney make pointed discovery requests for this type of electronic discovery because courts have been hesitant to honor broad discovery requests in this area.  The courts do not relax their standards on overly broad and general e-discovery requests for social media data just because the information is easily accessible.

How Do You Tailor Your Discovery Requests for Social Media?

The way you and your attorney tailor your e-discovery requests for social media data should be guided by the rules of civil procedure.  The first question you and your attorney must ask is: “is the requested information relevant?”  Rule 26(b)(1) allows you to request

“discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.”

This standard is meant to make parties to litigation and their counsel really think about the importance of the discovery they are requesting and whether the benefits of receiving the data are worth the time and expense of finding and producing it.  The closer you can make the connection between the need for the data to the time and expense of producing it, the more likely your request will be accepted by the court.

The key is to narrow the request down to what is needed to pursue or defend your claims.  Use the complaint and the legal elements of your claims and defenses as guidance for the request.

How Do the Courts Interpret What is “Relevant” For Purposes of Discovering Social Media Data?

While courts will typically construe the definition of “relevance” broadly in line with the rule, this does not allow you to make broad general discovery requests for “all” information posted on social media websites.  Some courts have even established special relevance standards for discovery of electronic data on social media websites, requiring the party seeking discovery to show that publicly-available information on social media websites adversely affects the discovering party’s claims and defenses in the case.

For example, in a medical malpractice suit the discovering party sought from the opposing party all content from social media websites “relating to any factual allegations” made by the opposing side or its experts.  When the opposing party fought the request, the district court agreed, and denied the discovering party’s request because it was not narrowly tailored and did not include a limitation that the materials relate to the complaint or the action.  The court in this case also found the discovery request to be unduly vague because it failed to identify categories of relevant information, but rather required the opposing party to determine relevance on their own.

Another example is the court’s ruling in a nationwide fair labor class action, where the discovering party, a store, sought disclosure of all social media activity by each of the 87 opt-in class action member-employees.  The discovering party was trying to find out whether the class action members had made posts on Facebook during working hours, and argued the information was relevant because it needed the information to determine whether the employees had been forced to work during meal times, in violation of fair labor laws.

The court denied the request, even though the discovering party narrowed its request to data produced during the class action members’ working hours at the discovering party’s store.  Specifically, the court found that the discovery sought was not reasonably calculated to lead to the discovery of admissible evidence because posting on social media during work did not tend to show that the opt-in employees had received a bona-fide meal time, and amounted to a “fishing expedition.”

The court also found the discovering party’s request was overboard and unduly burdensome because it would have required the 87 opt-in plaintiffs to review over four-year’s worth of social media activity and match it up with their work schedules.   

In another example, the court in a wrongful death action denied the discovering party’s request for information from the opposing party’s cell phone, e-mail, social media accounts, and messages sent and received by the opposing party through these modes of communication if they “in any way” related to the complaint.  In denying the motion to compel, the court found that the discovering party’s hope that this discovery may lead to admissions against interest was not enough to require the opposing party to provide access to communications made to third parties.

However the courts will grant broad requests for e-discovery of social media sites where applicable to the case.  For example, in a disability discrimination case, the court granted a discovering party’s request for postings to social networking websites concerning the events alleged in the opposing party’s amended complaint because the requested discovery was relevant to the litigation.  But the court denied the request for information concerning the opposing party’s emotional well-being because expressions of “joy, happiness, or sociability” on social media sites were not probative of the opposing party’s emotional distress.

In sum, the court’s treatment of e-discovery requests from social media can vary dramatically from case to case depending on the circumstances, so your attorney must not only understand the rule but also the way courts interpret the rule.  If you and/or your company are embroiled in a lawsuit requiring the e-discovery of social media, make sure you and your attorney are aware of the parameters of such discovery.  Contact Edwards Law today for help with the e-discovery process.