A multi-part series on the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery and how to overcome them
While the publicly-shared materials on social media services can be collected directly by any party, the non-public materials in those user accounts can only be obtained through discovery. In general, social media materials are discoverable under the same conditions and in the same ways as any other type of evidence. As defined in Federal Rule of Civil Procedure 26(b), the scope of permissible discovery is:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.
This standard applies to tweets, Facebook posts, or Instagram pictures the same way it does to more traditional sources like Office documents or emails. If it’s relevant, it’s discoverable.
The relevance requirement is an extremely low bar to clear under the Federal rules. Federal Rule of Evidence 401 establishes that evidence is relevant if, “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Thus, non-public social media materials are discoverable:
Despite the lowness of this bar and the relative simplicity of this standard, parties have frequently ended up in dispute over the appropriate scope of discovery of these materials, with requesting parties routinely making blanket requests for all materials and producing parties pushing back, asserting overbreadth, irrelevance, and privacy issues. See e.g. Loel A. Johnson v. ABF Freight System, Inc. (M.D. Fla. Jan. 27, 2017) (ordering production of Facebook materials, but limiting to relevant scope); Madeline Scott v. United States Postal Service, et al. (M.D. La. Dec. 27, 2016) (ordering production of Facebook materials, but limiting to relevant scope).
When traditional requests for production and direct scope negotiations have failed, parties have tried a variety of alternative tactics. Among the scenarios that have arisen in this context are in camera review, password requests, and subpoenas to service providers.
So far, the most commonly used mechanism for resolving disputes over the appropriate scope of social media discovery has been in camera review of the materials by the judge. In numerous cases over recent years, judges have opted to review disputed materials (or samples of them) to resolve questions about relevance and balance issues of privacy. See e.g. A.D. v. C.A. (N.Y. Sup. Aug. 13, 2015); Douglas v. Riverwalk Grill (E.D. Mich. Aug. 24, 2012); Offenback v. L. M. Bowman Inc., et al. (M.D. Pa. June 22, 2011); and, Barnes v. CUS Nashville, LLC (M.D. Tenn. June 3, 2010).
Some judges, however, have declined to take such relevancy evaluations upon themselves. See e.g. Melissa G. v. North Babylon Union Free Sch. Dist. (N.Y. Sup. Mar. 18, 2015) (“. . . there is no basis to believe that plaintiff’s counsel can not honestly and accurately perform the review function in this case . . .”); Tompkins v. Detroit Metropolitan Airport (E.D. Mich. Jan. 18, 2012) (“‘Such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance.’”).
In the first few years of social media discovery, a number of litigants attempted to compel production of the opposing party’s social media account password to provide the requesting party with unrestricted access to review all non-public content in the account. See e.g. Trail v. Lesko No. GD-10-017249 (Allegheny Cnty. C.P. July 3, 2012) (denying password requests but reviewing McMillen v. Hummingbird Speedway, Inc. (2010), Zimmerman v. Weis Markets, Inc. (2011), and Largent v. Reed (2011), each of which ordered production of a Facebook password).
Because this approach exposes extensive irrelevant (and private) materials, it is generally disfavored by judges and parties, and it has become uncommon in recent years. See e.g. In re Milo’s Kitchen Dog Treats Consolidated Cases No. 12-1011 (W.D. Pa. April 14, 2015) (denying password request based on review of Silva v. Dick’s Sporting Goods, Inc. (2015), Ogden v. All-State Career Sch. (2014), Smith v. Hillshire Brands (2014), and Bosh v. Cherokee Cnty. Governmental Bldg. Auth. (2013), each of which denied such requests as unnecessary or overbroad).
Some litigants have attempted to obtain non-public social media materials by subpoenaing those materials directly from the social media service providers. Unfortunately for the requesting parties, those attempts have run up against Title II of the Electronic Communications Privacy Act of 1986 (Pub. L. 99-508, Oct. 21, 1986), which is also known as the Stored Communications Act (“SCA”). The SCA establishes certain privacy protections for our electronic materials stored with third party service providers, from both government intrusion and third party access.
In the case of Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010), a party issued subpoenas to Facebook and Myspace seeking specified, non-public materials from the opposing party’s accounts. A Federal District Court judge later quashed those subpoenas, finding that Facebook and Myspace qualified as “electronic communication services” under the SCA, which therefore prohibited the desired disclosures. More recently, in the case of Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. Aug. 20, 2013), a Federal District Court Judge again determined non-public Facebook materials to be protected by the SCA (in a non-discovery context).
Upcoming in this Series
In the next part of this series, “Authentication and Admissibility of Social Media Evidence,” we will begin our discussion of the issues associated with authentication and admission of social media materials as evidence.