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Social networks continue to be a particularly ripe source of relevant ESI in eDiscovery. With the continued proliferation of case law, key trends are emerging and providing guidance regarding the production and preservation of social media. One of those trends – the need to prepare and respond to narrowly tailored discovery requests – has been captured in several recent cases.
Narrow Discovery Requests
Courts have clearly established that litigants must satisfy a “threshold showing” of relevance before allowing the discovery of materials from a party’s social media accounts. This was certainly the case in Devries v. Morgan Stanley, where a federal court in Florida forbade the defendants from discovering the plaintiff’s social networking activities. The request at issue was broad in scope:
All messages and postings that you, or anyone acting on your behalf, transmitted or received through social media sites, including Facebook, Instagram, WhatsApp, Twitter, and LinkedIn, during your employment with Defendants . . . (emphasis added)
Despite the policy underlying the Federal Rules of Civil Procedure that “strongly favor[s] full discovery whenever possible,” the court found that such a request was “unduly burdensome . . . too broad and not reasonably calculated to lead to the discovery of admissible evidence.”
Similarly, in Horsnell v. YMCA of Middle Tennessee, the plaintiff had no obligation to disclose “certain nonpublic information” from his Facebook and LinkedIn accounts in response to an interrogatory. The court explained that requesting parties do not have “a generalized right to rummage through information that a party has limited from public view on a social networking site.” Without a fact-specific showing of relevance, allowing this type of discovery would improperly give judicial imprimatur to “the proverbial fishing expedition.” Since the defendant had not made the prerequisite showing, its motion to compel was denied.
Caputi v. Topper Realty Corp. encapsulates both the preparation and production aspects of this emerging trend. In Caputi, a Long Island federal court proscribed the defendants’ request to discover the “complete history” of the plaintiff’s Facebook account. The defendants had sought the information to defend against the plaintiff’s Fair Labor Standards Act claim by showing that she engaged in “nonwork-related activities.” Even after the defendants “limited” their request to a five and one-half year period, the court still found that such a demand – which sought “all wall posts, status updates, pictures, messages, communications . . . and any other content displayed at any time” – to be unreasonably overbroad. However, the court did allow a much narrower inquiry into the plaintiff’s Facebook activities: discovery of information that could arguably show that the plaintiff did not experience “emotional distress . . . as alleged in her Complaint.”
Drafting Lessons and Production Pointers
Devries, Horsnell, and Caputi all stand for the proposition that sweeping demands for social networking activities will typically be denied. If requesting parties expect to obtain access to social media, they must – as Caputi teaches – craft narrowly tailored requests that target precise, relevant categories of information. Only by using a scalpel instead of a sledgehammer can parties realistically expect to discover such information.
Responding parties should also learn the corollary lesson from Caputi and other cases, i.e., to prepare for productions of social networking content. While courts may be disinclined to compel broad productions, they will order parties to turn over tweets, posts, photos, and related social media activities in appropriate circumstances. Responding parties would be well advised to prepare for this in advance by adding social media to their litigation readiness plan and their ECA checklist. Following these steps will better enable responding parties to comply with the substance of a production order while also satisfying a tight production deadline.
About the Author
Philip Favro brings over fourteen years of expertise to his position as Senior Discovery Counsel for Recommind, Inc. Phil is an industry thought leader, a global enterprise consultant, and a legal scholar on issues such as eDiscovery, information governance, and data protection. Phil’s expertise has been enhanced by his practice experience as a business litigation attorney in which he advised a variety of clients regarding complex discovery issues. Phil is a member of the Utah and California bars. He is an active member of the American Bar Association and also contributes to Working Groups 1 and 6 of The Sedona Conference. Phil also serves as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.