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.

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.