Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.
Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.”
In Ford v. United States, the U.S. District Court for the District of Maryland rejected the government’s request for broad social media-related discovery. The government had sought “any documents[,] postings, pictures, messages[,] or entries of any kind on social media within the covered period relating to [c]laims by Plaintiffs or their [e]xperts.” The court denied the motion to compel, holding that the government’s request was not narrowly tailored and “does not describe the categories of material sought; rather, it relies on Plaintiffs to determine what might be relevant.”
Other courts, when quashing requests for social media-related discovery, have held that the litigants may renew a failed request, if circumstances change. For example, in Root v. Balfour, from Florida’s Second District Court of Appeal, a mother had sued the City of Cape Coral, a construction contractor and a subcontractor for damages suffered by her son who was struck by an oncoming vehicle. The lower court had ordered the mother to produce various types of Facebook postings from both before and after the accident, including any information about counseling or psychological care she obtained; her relationships with her son and other children; and her relationships with other family members, boyfriends and significant others.
The appellate court quashed the order, finding that the requested discovery did not survive a relevance inquiry and that even the magistrate acknowledged that “95 percent, or 99 percent of this may not be relevant.” The appellate court, however, held that if further developments in the litigation indicated that such information may be discoverable, the trial court might have to review information in camera and fashion appropriate limits regarding the discovery.
Other courts, while not quashing social media-related discovery requests entirely, have severely narrowed the requests before compelling production. For instance, in Mailhoit v. Home Depot, from the Central District of California, the defendant had demanded a wide array of social media-related discovery. These demands included (1) any profiles, postings or messages from social media sites relating to any mental state of the plaintiff; (2) third-party communications to the plaintiff that place her own communications in context; (3) any pictures of the plaintiff; and (4) social networking communications between the plaintiff and current or former Home Depot employees or that in any way refer or pertain to her employment at Home Depot or the lawsuit. The court found the last category to be relevant and quashed the rest on the grounds they were not reasonably particular requests and therefore not likely to lead to discovery of admissible evidence.
In certain cases, courts have required the requesting litigant to show some information in the public social media profile that undermines the plaintiff’s claim. In Potts v. Dollar Tree Stores, from the Middle District of Tennessee, the plaintiff sued for race-based employment discrimination, and the defendant requested, among other materials, full access to the plaintiff’s Facebook page. The court found that the required showing had not been made. It concluded that the defendant “lack[ed] any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to discovery of admissible evidence.”
We note, however, that at least one court has criticized the approach of looking to the public social media for indications of relevancy of the private portions of the site. In Giachetto v. Patchogue Medford Union Free School District, the U.S. District Court for the Eastern District of New York observed that “[t]his approach can lead to results that are both too broad and too narrow” and went on to analyze category-by-category what the defendant had demanded to determine the scope of the relevant social media information in what the court called a “traditional relevance analysis.”
Social media discovery has also sometimes involved the court itself reviewing documents in camera to determine relevancy. For example, in EEOC v. Honeybaked Ham, involving a hostile work environment class-action lawsuit, the U.S. District Court for the District of Colorado ordered that each class member’s social media content be produced for review by the court in camera to determine what was legally relevant.
Similarly, in Offenback v. Bowman, from the Middle District of Pennsylvania, the plaintiff conceded that a limited amount of information in his Facebook account was subject to discovery, but the defendants argued for a much broader scope of discovery from the plaintiff. The court reviewed the information in camera and, siding with the plaintiff, determined that only a limited amount of information from the Facebook account had to be produced to the defendants.
Social media discovery issues will inevitably arise with even greater frequency in federal and state courts. As the courts struggle through the implications of such discovery issues, litigants should be aware that while social media is generally discoverable, courts are demanding more specificity in requests for social media information as they evaluate relevance.