By Daniel Garrie / Law & Forensics LLC
Seeking information from social media accounts is becoming commonplace in litigation. Obtaining social media discovery, however, can pose significant challenges, as this information can take many forms, involve different file types, be generated by different users and be extremely voluminous. To avoid pitfalls, requesting parties should avoid blanket requests and be specific about the social media material they want and need. Likewise, responding parties should fully produce social media data responsive to a request, and fully document redacted or withheld material.
Scott v. United States Postal Service
The case of Scott v. United States Postal Service illustrates the importance of tailoring social media requests. Scott was a personal injury case. To help prove the lack of injury, the defendants moved to compel the production of “all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.” The plaintiff objected that this request was “immaterial and not reasonably calculated to lead to the discovery of admissible evidence.” The court found that the information sought was relevant but agreed that the request was overly broad. The court explained, “[A] request for discovery must still be tailored … . Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition … .”
The court found that the primary reason the defendants’ request was overly broad was that it lacked a connection to the relevant injuries for the case. The court distinguished Scott from prior similar cases where production was compelled by stating, “the Request for Production is overly broad to the extent that it seeks all social media postings ‘related to any type of physical or athletic activities from June 6, 2014, to present’ ” as opposed to “postings or photographs that reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.” As shown, when crafting requests, it is important to be specific in describing the information sought and to be sure to connect the requests to the relevant issues in the case.
In turn, parties should be careful to respond completely to requests for social media data. This can be difficult due to the multifaceted nature of social media content, which may contain posts, comments, threads, messages and “statuses” from various locations and contributors. In this regard, parties requesting social media data often assume they can readily receive all the information from a user’s account just as it appears in their browser. This approach is unrealistic. As one commentator has noted, “People tend to expect that elements linked or embedded into content will be included, but those elements are often hosted on completely different web platforms, or its hosting may have expired.”
The complexity of social media data, however, is no excuse for incomplete production, and failing to include relevant material can have serious consequences. D.O.H. v. Lake Central School Corp., for example, illustrates how incomplete production of social media can result in sanctions. In this case, the plaintiff was ordered to produce the following:
“[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS [social networking service] applications for the relevant time period ‘that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.’”
D.O.H. v. Lake Central School Corp.
While there may have been a good case that this request was overly broad, that is what the court included in its order, and the plaintiff was bound to comply with it to the best of his ability. The plaintiff responded by producing “a portion of his Facebook account.” The defendants objected to the production because it failed to include wall comments, causes joined, groups joined, activity streams, messages, photographs, postings and SNS applications, and because the plaintiff failed to produce a privilege log.
Over the next several months, the plaintiff provided multiple supplemental productions, including a production of 1,045 pages of heavily redacted Facebook content and five pages of Twitter content. Defendants objected to the supplemental productions, claiming that the plaintiff “failed to include all relevant information from [plaintiff’s] social networking accounts and to include deleted portions of his social networking accounts.”
The court found that the plaintiff’s productions violated the court’s production order because they failed to include all of the plaintiff’s social networking information and a log for the redacted content. For example, while the plaintiff produced only five pages of Twitter content, the defendants located approximately 56 pages through their own efforts, and listed specific relevant tweets that were missing from the plaintiff’s supplemental productions. Further, the plaintiff never produced a privilege log for the redacted material. For these violations, the court issued sanctions, ordering the plaintiff to supplement the production and pay the defendants’ reasonable attorney fees and expenses from the discovery dispute.
As the Scott and Lake Central cases illustrate, all parties to an action should take social media productions seriously. They should strive to identify relevant social media information with specificity – and to do so early in the case. This will give them the best chance to formulate proper discovery requests, and to properly respond to the ones they receive.
Daniel Garrie is an arbitrator, forensic neutral and technical special master at JAMS, available in Los Angeles, New York and Seattle. He is executive managing partner of Law & Forensics LLC, and head of its computer forensics and cybersecurity practice groups, with locations in the United States, India and Brazil. He is also a cybersecurity partner at Zeichner Ellman & Krause LLP. He can be reached at Daniel@lawandforensics.com.