With the exponential growth in the use of social media by individuals and corporations, civil discovery questions inevitably follow.  Courts and litigants have been left to grapple with questions regarding the discoverability of data on social media sites and the appropriate scope of such discovery.  Although the law will surely evolve in this area, some trends have started to appear.  Here are four critical items to keep in mind:

First, no one seriously questions that photos, postings, messages, and other information stored on social media sites are open to discovery.  Courts have consistently allowed discovery of data on social media sites in cases presenting a range of issues.  Although, as discussed in previous issues of this newsletter, seeking to subpoena data directly from Facebook, Twitter, or other social media providers may in many instances run afoul of the Stored Communications Act, courts have allowed discovery directly from parties to litigation where such data is relevant and available.

Second, content from a party on a social media site may be discoverable even if such party has adjusted privacy settings so that only select individuals can view the content.  Simply because you believe the information is private, does not mean it is protected from discovery.

For example, in a 2010 federal court case in the Southern District of Indiana, EEOC v. Simply Storage Management, LLC, the claimants alleged that they suffered from post-traumatic stress disorder as a result of employment discrimination.  At the defendant’s request, the court ordered the claimants to produce all relevant “profiles, postings, or messages . . . and . . . applications” as well as photographs and videos on their social media sites.  The court found that “a person’s expectation and intent that her communications [on a social media site] be maintained as private is not a legitimate basis for shielding those communications from discovery.”  The court considered this simply “the application of basic discovery principles in a novel context.”

Similarly, in a New York case also from 2010, Romano v. Steelcase Inc., the court granted the defendants access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.”  The court concluded that allowing the plaintiff to “hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trail.”

Third, the fact that a party to litigation maintains profiles on social media sites does not give the opposing party carte blanche to compel broad discovery of the contents of those sites.  When it comes to social media sites, courts have been especially wary of providing a license for a fishing expedition.  If you are seeking data stored on a social media site, you will probably need to present some basis to suggest that the information is relevant.

For instance, in another recent New York case, Habib v. 116 Central Park South  Condominium, the defendant condominium in a slip and fall case sought an order compelling the eighty-year-old plaintiff “to provide authorizations for Facebook, MySpace and/or Twitter” accounts that he maintained.  The court, however, refused to compel discovery into this tech-savvy octogenarian’s social media usage, finding the defendant did “not offer a reasonable explanation as to why they believe that material information would appear on plaintiff’s social network pages [and that without] the explanation, the requested authorization is a fishing expedition.”

Likewise, in the New York case McCann v. Harleysville Insurance Company of New York, the court affirmed an order denying a motion to compel discovery into a litigant’s social media data, finding “defendant essentially sought permission to conduct a ‘fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.”  Although the universe of reported cases involving discovery from social media sites is rather small, courts have been quick to cut off litigants who simply want to snoop around the opposing party’s social media sites.

In contrast, where a party has been able to establish that the private portion of an opposing party’s social media website is relevant, courts have been willing to permit discovery.  For instance, in a Pennsylvania case from earlier in 2011, Zimmerman v. Weis Markets, Inc., the defendant in a personal injury case sought access to the non-public portions of the plaintiff’s Facebook and MySpace pages to refute the plaintiff’s claim that a forklift accident caused serious and permanent impairment to his health and ability to enjoy life.  A review of the public portions of the plaintiff’s Facebook page reflected that his interests included “ridin” [sic] and “bike stunts” and included recent photographs of the plaintiff “with a black eye and his motorcycle before and after an accident.”  Unsurprisingly, the court permitted the discovery to proceed.

Likewise, in Romano v. Steelcase Inc., the court granted a motion to compel discovery of the private portions of the plaintiff’s Facebook site where plaintiff’s “public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.”

Thus, keep in mind that courts may not look favorably on a request to engage in discovery of social media sites without some indication that they are likely to include relevant information.  If you seek to obtain discovery regarding the private portions of the other side’s social media website, you may need to establish that the discovery is warranted.  This could be established using public portions of the social media site or perhaps an affidavit from an individual who is a “friend” of the other party and who has had access to the private portions of the website.  Establishing such relevance may not be possible in all cases, but you should make every effort to present a detailed showing as to why the discovery is necessary in your case.

Finally, if you receive a demand from your adversary for information available on a social media site, merely arguing that all of the data is – or once was – publicly available may not be sufficient.  Recent case law suggests that the party maintaining the social media site has the burden of capturing and producing any relevant content, even when that content is publicly available.

In a recent trade dress infringement case in New Jersey federal district court, The Katiroll Co., Inc. v. Katiroll and Platters, Inc., the plaintiff moved for spoliation sanctions against the defendants after the individual defendant removed his Facebook profile picture, which showed the allegedly infringing trade dress, without preserving the appearance of his Facebook page prior to the change.  The defendants argued that a finding of spoliation was unwarranted because the Facebook page was public and the plaintiff could have printed any relevant evidence at any time.  The court disagreed, finding “public websites to be within the control of parties who own them” and calling the defendants’ argument “an attempt to ‘pass the buck’ to Plaintiff to print websites that Defendants are obligated to produce.”  In this same vein, because of potential hurdles in getting printouts from publicly available social media websites admitted into evidence, you may want to insist on receiving the other party’s social media data directly from that party, even if such data are publicly available.