Social media may contain a treasure trove of evidence bearing on claims in litigation, but parties must take care to tailor their discovery requests to information that is both relevant and proportional to the needs of the case.
This article was published in Law360 on November 17, 2017. © Copyright 2017, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.
Social media users create a candid digital record of their experiences, thoughts and feelings. Such information may be relevant in litigation and crucially has not been subject to a lawyer’s filter. For example, as the cases below show, vacation photos shared on social media can effectively undermine a claim that an injury has rendered a plaintiff unable to enjoy life. Likewise, defendants’ or their employees’ interactions on social media may serve as the basis for a discovery request for social media or undermine a defense. Courts have consistently held that social media accounts are subject to established discovery principles but are reluctant to allow parties to rummage through private social media accounts. Accordingly, requests for access to information from Facebook, Twitter, Instagram, Snapchat and other social media platforms must be carefully tailored.
In a recent case, the defendants sought all social media in its native format relating to the plaintiff’s travel and social activities. The court denied the request because it was not limited by substance or time frame and because the requesting party had not made a sufficient showing of relevance to justify production in native format. This case and other recent cases in federal and state courts provide a few practice pointers for social media discovery:
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Requests must be closely tied to the subject matter of the case.
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Requests must be strictly limited by the relevant time scope.
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Parties must formulate their requests carefully because courts may not be willing to reframe them.
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Requests for metadata or native format production must be substantially justified by the needs of the case or on evidence of spoliation.
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The above pointers can also serve as the basis for objections to requests for social media.
In re Cook Medical IVC Filters Marketing, Sales Practices & Products Liability Litigation
The plaintiffs in the IVC Filters1 multidistrict litigation claimed they were injured after using an implanted inferior vena cava (IVC) filter. In this bellwether case, the defendants sought a copy of a plaintiff’s Facebook account in native format, including metadata, that was provided to the plaintiffs’ expert. The plaintiff objected because she had already provided relevant content from Facebook in PDF format.
The district court recognized that a requesting party may specify its desired format for information but denied the motion to compel reasoning that native format social media data contains “considerably more information — namely metadata, which provides much more private information. The metadata contained in native files gives the who, what, when, where, and how of the making of a post, including metadata from non-parties.”2The court found that native format was “entirely different and too intrusive,”3 and denied the defendants access to native files, finding that they had not made a sufficient showing. To the extent that the defendants sought native Facebook data because the plaintiffs’ expert relied on its metadata, the court suggested that the defendants “promptly make and justify any request for specific native file posts.”4
Turning to the specific requests for social media information, the court stated that the plaintiff has no expectation of privacy in her public social media accounts but held that the plaintiff was not required to produce what the defendants could obtain through an internet search.5 Private social media accounts, however, require a more involved analysis as the requesting party must show that its request for information is relevant and proportional to the case.
The court examined the defendants’ request for social media information regarding travel, hobbies, social activities and claims and damages from the date of the IVC surgery to the present. Because the defendants would be entitled to serve interrogatories asking questions on the same topics the court compelled the plaintiff to respond to the defendants’ requests.6 The court, however, denied the defendants’ demands for screenshots of all the plaintiffs’ social media posts following the surgery because the request was not limited by subje
