Probably for generational reasons, I have written and spoken at CLEs quite a bit about discovery of social media in civil litigation, in particular personal injury litigation. At the extremes, defense lawyers want an entire Facebook account, and plaintiff’s lawyers want a privilege that doesn’t even exist for personal diaries.
There is no case law on this in Washington, probably because so few discovery issues ever reach the appellate level. Below is a list of cases and some analysis regarding the proper scope of social media discovery taken from a WSBA seminar I wrote for and spoke at. The short version is this. Facebook can no longer be considered a “social networking” tool. It is a member-controlled posting environment, like a listserv only more restrictive, an email account, and an instant messenger/texting account, all in one. It is no more appropriate to demand an entire Facebook account than it is to demand an entire Gmail account. Conversely, it makes no more sense to deem all of Facebook off limits than it would to declare written communications about a legal claim categorically irrelevant.
The middle ground is to treat social media the same as we treat any pile of documents. One party can request that the other party go through the documents and produce those relevant or related to x, y, and z. Thus, although it is easy to get lost in the technical details of social media and national case law, there is no reason to stray too far from CR 26 and the common law interpreting it. Social media materials should be treated the same as any other data or documents.
Nevertheless, the below materials may help better explain the considerations and analysis specific to social media.
Scope of Discoverable Social Media: What Is “Reasonably Calculated” Based on the Type of Case?
Civil Rule 26(b)(1) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action… .” Though the rule is much broader than the tests applied to admissibility at trial, discovery methods must be “reasonably calculated to lead to the discovery of admissible evidence.”
The few Washington appeals cases to address the application of the CR 26 standard suggest that a party seeking discovery should be able to demonstrate (1) a cognizable goal for the discovery—what the party hopes to obtain, (2) that the material sought is probative of an issue in controversy—why the party is entitled to it, and (3) that the method used is reasonably commensurate with that purpose—how the party obtains the information. See, e.g., City of Lakewood v. Koenig, 160 Wn. App. 883, 250 P.3d 113 (Div. 2 2011); Morgan v. PeaceHealth, Inc., 101 Wn. App. 750, 14 P.3d 773 (Div. 1 2000). Thus, a party should narrow the request to avoid inclusion of information and documents that are not likely to lead to the discovery of admissible evidence.
With social media discovery, this task can sometimes prove pragmatically difficult and highly debatable. Because Washington cases offer little insight into this specific issue, below is a summary of how courts across the country have addressed discovery of social media in various contexts.
Case Law from Other Jurisdictions Related to Social Media Discovery
Holland v. Barfield, 35 So.3d 953 (Fla. 2010). The trial court ordered a defendant in a wrongful death action to produce her entire computer hard drive and cell phone. The plaintiff sought evidence of communication amongst the defendants through Facebook and Myspace. Emphasizing that the request sought the electronic media themselves, rather than the information contained therein, the court of appeals holds that such unlimited breadth is not appropriate. It allows the other party complete access to loads of unrelated information without any deference to privileges or rights of privacy. Id. at 956. Holland also notes that there was no evidence of any destruction or thwarting of discovery by the plaintiff, and thus, no need for such a broad scope. See id. at 955-56.
Mackelprang v. Fidelity National Title Agency of Nevada, 2007 WL 119149, 99 Fair Empl.Prac.Cas. (BNA) 997 (D. Nev. 2007). The plaintiff sued for sexual harassment in the workplace and ensuing emotional distress. The defendant sought private messages on her Myspace account, believed to be evidence of her sexual promiscuity and admissions about the subject matter of the litigation. This casts too wide a net, the court holds, because it allows the defendant access to a great deal of other intensely private information not related to the lawsuit. Any little detail communicated by a plaintiff could “in some theoretical sense be reflective of her emotional state,” but that is not justification for the breadth of the inquiry.
Barnes v. Cus Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. 2010) (creating a Facebook account for the court and allowing the judge to “friend” the litigants).
Bass v. Miss Porter’s School, 2009 WL 3724968, 1-2 (D.Conn. 2009). The court emphasizes that relevance is in the eye of the beholder, and the plaintiff offered no guidance as to how she determined which documents to produce. Concluding that there was a large discrepancy in potentially relevant material between what was produced and the 750 total pages of documents, the court hands over the complete copy of all Facebook documents.
McMillen v. Hummingbird 12 Speedway, Inc., 2010 WL 4403285 (Pa.Com.Pl. Sept. 9, 2010). The plaintiff in a personal injury case belonged to Facebook and MySpace, and had posted information on those sites about trips he had taken. Defendant asked for login information to his social media sites. Plaintiff argued that social media communications were confidential, which implied a new privileged under Pennsylvania law. The court rejects that argument and declines to find a new privilege, emphasizing that social media tools are used to network and meet new people. Even if social media users communicate on private matters, the nature of the sites dispels an expectation of confidentiality. The court cites Facebook and MySpace policy allowing disclosure of information in certain circumstances to support the position that there is no reasonable expectation of privacy. (Note that Facebook’s posted policy on divulging content, as well as privacy settings, have changed in many ways since this case.)
Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650, 653 (2010). The facts here are nearly identical to McMillen. Plaintiff claimed permanent injury, putting loss of enjoyment of life at issue. The public portions of her social media pages revealed traveling, an “active lifestyle.” Plaintiff refused to answer questions about social media at her deposition. Defendant then sought “full access to and copies” of all Facebook and MySpace records. The court holds the material discoverable, noting that social media sites are about sharing information. The court observes as follows:
Thus, it is reasonable to infer from the limited postings on plaintiff’s public Facebook and MySpace profile pages that her private pages may contain material and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny defendant an opportunity to access these sites not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.
Addressing Plaintiff’s raised Fourth Amendment privacy concerns, the court finds no reasonable expectation of privacy.
E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 436-37 (S.D. Ill. 2010). EEOC sued on behalf of employees for sexual discrimination, which included an emotional distress claim. The court endeavors to delineate the “broad limits—but limits nevertheless—on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.” Id. at 434. The court holds as follows:
(1) Privacy settings and the user’s expectations of privacy are not a basis to completely shield discovery, but may be relevant to a protective order in determining whether a request is burdensome or oppressive or otherwise improper. Id.
(2) The contours of social media communications relevant to emotional distress are difficult to define, but “that does not mean that everything must be disclosed.” With no finding that the plaintiff’s responses to tailored requests were deficient, complete disclosure of site material is not necessary. Id.
(3) The scope of allowable discovery is broader than communications related directly to the issues raised in Plaintiff’s complaint. A wider net may retrieve communications related to injury or credibility, which is discoverable. Id. at 435-36.
(4) “With these considerations in mind, the court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications … 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.” Id. at 436. This rule applies to third-party communications with the plaintiffs, as well as photographs and videos posted by the plaintiffs. Photos and videos where the plaintiffs are merely tagged are less likely to be relevant.
Patterson v. Turner Constr. Co., 88 A.3d 617, 931 N.Y.S.2d 311 (2011). Patterson sued for personal injuries and the defendant moved to compel production of all of Patterson’s Facebook records after the subject incident. The trial court reviewed the social media materials in camera and determined that at least some of the discovery “will result in the disclosure of relevant evidence,” but that it is possible that not all Facebook communications are related to issues in the lawsuit. The appeals court reversed and remanded for more specific identification of Patterson’s relevant Facebook information, specifically that which may contradict allegations of injury. However, the court also reasons that Patterson’s Facebook materials are not shielded from discovery merely by use of privacy settings, just as a written personal diary may be discoverable.
Held v. Ferrellgas, 14 Inc., 2011 WL 3 896513, * 1 (D. Kan. Aug. 31, 20 11). In an employment discrimination case, the defendant sought the plaintiff’s Facebook data. The court found such material relevant to the case. Further, the court endorsed both the time-scope and manner of discovery, which requested only data during the plaintiff’s employment, and allowed the plaintiff to download and produce the data himself rather than provide direct access.
Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012).
Tompkins is a slip and fall case where defendant requested releases to obtain social media site information. The court holds as follows:
I agree that material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.
Id. at 388. The court distinguishes McMillen and Romano, noting that the alleged threshold evidence for the relevance of the inquiry, a picture of the plaintiff holding her dog, was not inconsistent with the plaintiff’s allegations. The court concludes, “based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.” Id. at 389. Further, the court finds, a request for the entire account was overly broad.
Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176 (E.D.N.Y. 2012). In a sexual harassment lawsuit, the court found social media materials largely relevant, with minimal reasonable expectations of privacy. The court’s reasoning and citations are quoted below.
Although the law regarding the scope of discovery of electronically stored information (“ESI”) is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable. Courts have found, particularly in cases involving claims of personal injuries, that social media information may reflect a “plaintiff’s emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed.” See, e.g., Sourdiff v. Texas Roadhouse Holdings, LLC, 2011 WL 7560647, at *1 (N.D.N.Y. 2011). For example, where a plaintiff puts her emotional well-being at issue when asserting claims of sexual harassment or discrimination as in this action, some courts have found that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting.” Bass v. Miss Porter’s School, 2009 WL 3724968, at *1 (D. Conn. 2009); see also Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167, at *1, *3 (S.D.N.Y. 2012) (in employment discrimination case, plaintiff’s chats with online psychic revealed her “work performance, relationships with co-workers, views regarding her treatment . . . emotional state before, during, and after her employment, efforts to mitigate damages”).
On the other hand, as other courts have observed, the “relevance of the content of Plaintiff’s Facebook usage . . . is more in the eye of the beholder than subject to strict legal demarcations.” Bass 2009 WL 3724968, at *1. Whether electronically stored and dissimated [sic] on the Internet or not, “anything that a person says or does might in some theoretical sense be reflective of her emotional state.” Rozell v. Ross-Holst, 2006 WL 163143, at *3 (S.D.N.Y. 2006).
The court examined the plaintiff’s social media materials and determined that both the public and private materials contained probative evidence of her mental state and participation in activities, which were relevant to her damages claim. Citing New York precedent allowing discovery of diaries containing contemporaneous mental states and impressions of the parties, the court draws no material distinction between such diaries and Facebook privacy settings. Further, the plaintiff had no “justifiable expectation that her [Facebook] friends would keep her profile private” (internal quotations omitted), and the wider the circle of friends, the more likely it is that posts would be viewed by someone the Facebook user does not foresee. Electronic communications in general may come with a lower expectation of privacy.
Nevertheless, the court declines to order production of all Facebook materials because “not all postings will be relevant to her claims.” The court applies a standard that the plaintiff must disclose social media communications and photographs “that reveal, refer, or relate to any emotion, feeling, or mental state, and that reveal, refer, or relate to events that could reasonably [be] expected to produce a significant emotion, feeling or mental state” (internal quotations omitted). In its order, the court limits the time-scope of production and addresses application to each Facebook function (e.g. tagging, photographs, etc.).
McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (N.Y. App.Div. 2010) (finding that defendant “failed to establish a factual predicate with respect to the relevancy of the evidence,” and that “defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence”).
Methods of Discovery: Production of Social Media Content vs. Methods of Direct Access
In the early stages of discovery battles over social media, some courts required that litigants provide direct access (login and password) for their social media accounts. These decisions appear to result from a litigant asserting a privilege that did not exist, a poor understanding of how social media platforms are used, or a limited and discoverable use of social media. See Romano, Mackelprang, and Bass, supra. Direct access to Facebook, for example, may include some posts to friends, but may also include hundreds of private messages, like emails, which may have no bearing on the litigant’s claims and instead may be very private in nature to the other parties to the messages. The other cases listed above, and most all of the more recent decisions, recognize that social media and its various functions also serve various purposes for each individual. Accordingly, most courts not only decline requests for direct access, but will also narrow the production based on an applied standard or determine firsthand which materials are discoverable.
Other than site inspections, it is very rare in discovery that a party is allowed direct access to records that are not by nature entirely at issue in the case (e.g. medical records in a personal injury case, an issue governed by statute), particularly when the privacy of non-litigants is involved. For example, in an employment discharge case, demanding all social media records from the employee-plaintiff may be similarly unfair and invasive as the employee demanding all emails from the employer, regardless of the participants or subject. Both could be described not just as a “fishing expedition,” but a “net fishing expedition,” scraping up everything on the sea floor.
To cast a wide net, litigants must have a compelling justification. As the above cases illustrate, a wide net may be justified if a party selects which materials to produce without identifying any basis for the selection, or if a party conceals discoverable materials or otherwise commits misconduct that puts good faith responses in question.