Niloy Ray
Paul Weiner
Aaron Crews
As social media inundates our daily lives, discovery requests seeking social media ESI grow increasingly common in civil litigation. However, because the technology is still relatively new, parties and courts are often confused or apprehensive about the discoverability of this data. Luckily, the application of ?traditional discovery principles clears this fog, revealing a fundamental truth: Discovery requests targeting social media data do not require a heightened justification or showing.
The Purpose of Social Media is to Be Social
"A person's expectation and intent that her [social media] communications be maintained as private is not a legitimate basis for shielding those communications from discovery," the court held in EEOC v. Simply Storage ManagementLLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). Indeed, the very idea that social media ESI is somehow "private" in the first instance is dubious. One joins a social media site to communicate with others. As aptly stated by a jurist north of the American border in Leduc v. Roman, 2009 CanLII 6838 (ON S.C.): "Facebook is not used as a means by which account holders carry on monologues with themselves." Rather, social media sites and services exist primarily to share and disseminate the information to multiple individuals within, and often beyond, one's traditional, face-to-face social network. For example, the court held in Romano v. Steelcase, 907 N.Y.S.2d 650, 653-54 (N.Y. Sup. Ct. 2010):
"Both Facebook and Myspace are social networking sites where people can share information about their personal lives, including posting photographs and ?sharing information about what they are doing or thinking. ... Facebook is about sharing information with others. ?Likewise, Myspace is a social networking service that allows members to ... find and communicate with old and new friends [and] share photos, journals and interests with your growing network of mutual friends."
Facebook and Myspace are just two examples of social networking sites. Other common sites include Google Plus, Twitter, Meetup.com, Orkut, Flickr, Gather.com, Tumblr, Windows Live Spaces, MSN Spaces, LinkedIn, Monster.com and CareerBuilder.com.
Accordingly, courts are increasingly coming to understand that, "Indeed, that is the very nature and purpose of these social networking sites, else they would cease to exist. ... In this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking," as the Romano court held.
A Party Cannot Hide Behind Self-Set Privacy Controls
Some social media sites allow users to limit the dissemination of information they post to those a user chooses as his or her "friends." Such self-imposed restrictions, however, do not trump basic discovery obligations. For instance, while acknowledging that "broad discovery" could reveal potentially embarrassing information about social media users, the court in Simply Storage rejected an objection to a request for social media information based upon privacy and ordered production of the claimants' Facebook and Myspace information, observing that discovery of social media information is the "inevitable result" of certain sorts of factual disputes (in that case, claims of emotional distress) in the modern, digital world. As the court explained, any privacy concerns are defeated by the fact that information sought would "have already [been] shared with ?at least one other person through private messages or a larger number of people through postings." Similarly, in Mackelprang v. Fidelity National Title Agency of Nevada, 2007 U.S Dist. LEXIS 2379 (D. Nev. 2007), the court approved discovery of ?relevant "private" Myspace email communications over the plaintiff's objection that such discovery "improperly invades [an individual's] privacy."
As the court in Zimmerman v. Weis Markets, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. Comm. Pl. May 19, 2011) has explained:
"To permit a party claiming very substantial damages for loss of enjoyment of life 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 trial."
Simply Storage rejected the EEOC's claim that producing social networking content would infringe on the claimants' privacy because merely locking a profile from public access does not prevent discovery.
Courts have also recognized that the mere act of filing a lawsuit oftentimes opens the door to disclosure of private or sensitive information via discovery, even if such data is stored on a social media site. (See, e.g., Beye v. Horizon Blue Cross Blue Shield of New Jersey, 2007 U.S. Dist. LEXIS 100915 (D. N.J. Dec. 14, 2007), ordering class action plaintiffs to preserve and produce "writings shared with others including entries on websites such as 'Facebook' or 'Myspace,'" and rejecting plaintiffs' privacy arguments, instructing: "While the plaintiffs suggest that allowing the order to stand may require the plaintiffs to have to choose between pursuing this litigation or disclosing private information about their child, that decision was made when the plaintiffs decided to file an action which required them to disclose information concerning their children's eating disorders, something they have described as an extremely sensitive topic.")
Moreover, the fact that discovery requests for social media data are often directed at individuals in litigation should in no manner limit the discoverability of such data.
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