Obtaining social media user content under most circumstances is extremely difficult unless you use the correct strategy. Often this will include relying on traditional discovery requests such as interrogatories, requests to produce and requests to admit. However, simply sending discovery requests without a basic understanding of the information available is a fool’s errand. It is pivotal that a practitioner who wants to conduct formal discovery of social media user content understand how each site stores and communicates its data. Armed with information, the informed attorney may well reap huge rewards when engaging in digital discovery.
Requests for Admission and Production
Once a matter has moved to litigation, and investigation has shown that the claimant has one or more social media accounts, traditional discovery methods should be used to obtain the information housed in these accounts. Requests to produce should be developed, and should be targeted at specific information contained on the claimant’s accounts. It is important to skip the generic request for “any and all” documents, and instead specify the types of photos, video or Snaps sought in order to avoid responses that assert the request is overly burdensome, overbroad or not reasonably calculated to lead to the discovery of admissible evidence. Note that each sample request to produce set forth below can be modified for use as a request for admission.
Sample Requests:
- Do you now have or have you ever had a social media profile such as, but not limited to: [specify social media sites]? If so, please produce a full and complete digital copy of all information contained on each site, free of redaction and alteration.
- Produce a complete archive of plaintiff’s Facebook account(s) (or any other social media account) as of [date of incident alleged in complaint]. This archive can be obtained through [describe method of obtaining information, described below, under the section entitled How to Retrieve Data for Discovery].
- Produce printed pages of the entire content of all blogs, logs, link logs, sketch blogs, photo blogs, tumble logs or art logs that you, or anyone with any knowledge of the facts and circumstances underlying the allegations in your complaint, have added content to since [date of incident alleged in complaint]. Also produce drafts, if any, of any blogs that you created before posting them online.
- Produce all documents relating to your participation in any business or social networking site, including but not limited to [specify social media sites] and any others, including printouts of all historical content, including posts, comments and photographs.
- Produce any profile posting or message, including status updates, Tweets, wall comments, causes joined, groups joined, activity streams, blog entries and/or social networking site applications relating to you, for the period from [the date of the incident alleged in the complaint] through the present, that reveals, refers to, or relates to your emotions, feelings or mental state.
