One of the worst things that can happen to a case in its early stages is to have a judge deny a discovery request.
Evidence is the foundation of any matter, and to lose any source of information is a potential case killer. Unfortunately, in a number of reported cases, lawyers are making basic mistakes and losing the chance to enter social media into the record. Social media is discoverable and is often central to many matters, but if lawyers don’t take social media discovery requests seriously, they can lose the chance to even review those sources of information.
In most of these cases, the requests fail because the courts rule a legal team is engaged in an over-broad fishing expedition. As in the case cited above, Keller v. National Farmers Union Property & Casualty Co., No. CV 12-72-M-DLC-JCL, (Dist. Court, D. Montana Jan. 2, 2013), the court denied a request for, “a full printout of all of social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from [date of accident] to the present.”
The plaintiffs complained, and the court agreed, that this request was, “overly burdensome and meant to harass.” However, the plaintiffs did say that, “if the Defendant make a more manageable request,” they would certainly be able to comply.
Don’t Get Greedy with Social Media Evidence
Some lawyers might not take social media evidence seriously. Others might not want to invest too much time in researching the available social media in a given matter. But that is exactly what courts say you must do in order to get your social media discovery requests accepted. There have been a number of commonly cited cases in which courts have ruled social media is discoverable in order to illustrate an individual mental state at a particular time. That includes public and private posts. In one of the most commonly cited, EEOC v. Simply Storage, the ruling stated that social media content, “is not protected from discovery merely because a party deems the content ‘private.'”
The bottom line is, you must identify social media sources that are discoverable AND demonstrate that the evidence sought is likely to be relevant. In Kregg v. Maldonado, the court wrote that a party must show, “at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”
Show Your Work
In the case Reid v. Ingerman Smiththe court granted a request for social media content similar to that in Keller. The difference is the defendants in Reid offered up a claim as to why they sought plaintiff’s private content. As the court put it, parties need “evidence that the content of public postings in any way undermines their claims in this case.” If public social media communications hint that there is discoverable information to be found, then the court will likely allow discovery of all social media postings, public and private.
So how do lawyers make the case that social media content is essential to their case? First, issue a litigation hold letter, just as in any other matter. Posts on social media are within the scope of “electronically stored information” as that term is used in Rule 34 of the Federal Rules of Civil Procedure. Litigation hold letters likely trigger an obligation to preserve such posts if they are reasonably related to the litigation. In instances where the discovery request is made to the social media website, the social media user must execute an authorization for the records, which is then provided to the social media host.
Demonstrate Social Media’s Discoverable
Unfortunately, things get a little tricky after this point. Many courts allow the producing party to review private postings and disclose what they think is discoverable. No matter how trustworthy an adversary may be, the producing party will surely have a more conservative view of what is discoverable. In order to get an impartial view, some parties will ask the judge to conduct an in-camera review of the social media pages and only grant the requesting party access to portions of the pages that are deemed relevant.
Unfortunately, too many lawyers think “social media” is just another type of evidence to check off on their list of discovery requests. But you cannot simply ask for “social media,” “Facebook postings,” or any other broadly defined category of information. Social media is different from other communications in that it includes public and private components. All of that information can be part of the public record, if you are able to demonstrate some likelihood the information is discoverable.
That will take time, research, and technology.