Discovery Rules Don't Give Heightened Protection
The often impassioned demands for heightened scrutiny of social media discovery requests are thus misguided. While parties may naturally be inclined to be more protective of this information given the free-flowing, informal and occasionally confessional nature of online interactions, social media discovery merely requires the application of basic discovery principles, albeit in a novel context. Rule 26 does not carve out any exception or other special standard for social media content; under the rule's broad standard, if the discovery sought is relevant and nonprivileged, it is generally granted absent any undue burden on the producing party. Likewise, the Advisory Committee Notes to Federal Rule of Civil Procedure 34, which governs the production of documents and electronically stored information in civil litigation, instruct that the rule "is expansive and includes any type of information that is stored electronically," and that the language of the rule is intended to be flexible enough to encompass "future developments in computer technology."
Moreover, no special privileges or other protections apply to social media communications. (See, e.g., McMillen v. Hummingbird Speedway, 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (C.C.P. Jefferson County, PA Sep. 9, 2010), ordering the plaintiff to provide his Facebook and Myspace usernames and passwords to counsel for the defendants, rejecting the plaintiff's argument that communications shared among one's "private" friends are somehow protected against disclosure in discovery and instructing "'no social network site privilege' has been adopted by our legislature or appellate courts"; Zimmerman, ordering the plaintiff to provide "all passwords, usernames and log-in names for any and all Myspace and Facebook accounts to the defendant" because "no privilege exists ... for information posted in the nonpublic sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.")
Furthermore, a standard protective order can address concerns about how "private" information that is produced in discovery can be disseminated; thus, arguments that such "private" information should not be produced in the first instance have been rejected. For example, in Ledbetter v. Wal-Mart Stores, 2009 U.S. Dist. LEXIS 126859 (D. Colo. 2009), the court denied the plaintiffs' motion for a protective order against Wal-Mart's subpoenas to various social media services. Addressing the plaintiffs' privacy concerns, the court made clear that social media information merited no special treatment: "The information sought ... falls within the definition of 'confidential information' in the [general protective order] and accordingly no further protective order is necessary to protect privacy interests."
Naturally, this does not imply in the on-line context that a party must produce "every thought [it] may have reduced to writing." (See Rozell v. Ross-Holst, 2006 U.S. Dist. LEXIS 2277 (S.D.N.Y. 2006).) However, so long as the substance of the communication bears on facts at issue, there is no determinative difference between social media content and communications and, for instance, in-person conversations with friends and acquaintances, which would properly be the subject of deposition testimony. Accordingly, "any profiles, postings or messages including status updates, wall comments, causes joined, groups joined, activity stream, blog entries," third-party communications, photographs, videos and similar social media content that are relevant to a party's specific factual allegations or defenses should generally be discoverable, according to the opinion in Simply Storage.
A Virtual 'Everything About Me' Folder
The recent case of EEOC v. Original Honeybaked Ham Co. of Georgia, 2012 U.S. Dist. LEXIS 160285 (D. Colo. November 7, 2012), provides a cogent rationale about why courts should allow broad discovery of social media ESI. According to that court, the creation of social media content is akin to a litigant affirmatively assembling "a file folder titled 'Everything About Me,' which [the plaintiff class action members in the case] have voluntarily shared with others. If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to [the] lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation."
Squarely addressing the privacy objection posed in opposition to production, the court rightly rejected it and reinforced its assessment that rather than commanding greater protection against discoverability, per se, social media information may actually be more readily discoverable, instructing:
"If all of this information was contained on pages filed in the 'Everything About Me' folder, it would need to be produced. Should the outcome be different because it is on one's Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others."
According to an article from a July 1996 newsletter published by the Clear Creek Mutual Telephone Co.:
"[Alexander Graham] Bell's 'speaking telephone' was not universally welcomed. Some people dismissed it as a scientific toy of little value. Others saw it as an invasion of privacy. However, the telephone began to make its way into society, catching the public imagination. ... 'Who could have foreseen what the telephone bells have done to ring out the old ways and to ring in the new; to ring out delay and isolation and to ring in the efficiency and friendliness of a truly united people?' The invention that was at first considered a toy had indeed changed the world."
While the age of social media may be in its infancy and some may consider social media sites a novelty (like many in the beginning of the 19th century first viewed the telephone), if data contained on a social media site is relevant, or appears reasonably calculated to lead to the discovery of admissible evidence, it can be requested and must generally be produced in discovery in civil litigation.
Niloy Ray is an associate and Aaron Crews is a shareholder in Littler Mendelson's e-discovery group. Both dedicate their practice full-time to managing e-discovery nationwide.
Paul Weiner is a shareholder and serves as national e-discovery counsel and chair of the firm's e-discovery practice.