By now, nearly every attorney knows that information on social media platforms like Facebook, LinkedIn and Twitter is subject to discovery. It is increasingly common for attorneys to seek discovery of social media, even in civil cases. But as attorneys grow more comfortable requesting such discovery and the courts develop a body of law for resolving social media discovery disputes, it’s worth spending some time to first think about when social media discovery really makes sense.
Generally speaking, discovery of social media may make sense in a variety of business disputes. A social media platform like Facebook may lead to relevant, useful information about the plaintiff in an employment discrimination or harassment lawsuit. In a suit to enforce a former employee’s non-compete agreement, the employee’s social media may have information on when she began working for a competitor and whether she shared confidential information. In a business tort case, a party may discover evidence of wrongful motive or intent relevant to a tortious interference with contract claim on a social media platform. Or, there may be evidence relevant to claims of misappropriation of business opportunities or breach of fiduciary duty. Discovery of social media may also be appropriate in cases involving fraud or misrepresentation. Last, discovery of social media may also make sense in some product liability actions. Plaintiffs often seek damages for emotional distress and social media can be a valuable tool in assessing the validity of the alleged distress.
But some courts have limited such requests in civil cases absent a good reason to believe that the private, non-public information contained on social media platforms is likely to have relevant information not already contained in the platform’s public content. For example, in the recent case Giacchetto v. Patchogue-Medford Union Free Sch. Dist., a court acknowledged legal rulings that have limited access to private information, but noted this approach is at once too broad and too narrow. On the one hand, the court explained that a plaintiff should not be required to turn over the private section of his Facebook profile merely because the public section undermines the plaintiff’s claims. But, on the other hand, the court said that a plaintiff should be required to review the private section of the profile and produce any relevant information under the basic principles of discovery, regardless of what is reflected in the public section. Still, the court cautioned that “a plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.”
To be sure, courts will not condone “fishing expeditions” as one federal judge recently ruled in Salvato v. Miley. A party seeking discovery of social media must be prepared to establish that the social media is discoverable under the generally applicable rules of civil procedure. Often, that means a party seeking such discovery must demonstrate that a prior investigation of publicly available social media or some other basis on which to believe that the non-public data contained on social media platforms is discoverable. As this ruling and other recent cases make clear, avoiding charges of a “fishing expedition” requires careful drafting of social media discovery requests. This generally requires prior investigation into the social media presence of a party, a thoughtful analysis of the claims at issue in the lawsuit, and discovery requests that are more targeted and do not generically refer to issues relevant to the lawsuit.
So, you’ve done your research, analyzed your claims and determined that social media discovery is appropriate. Now what? If the individual’s account is public, you could access the social media account and simply retrieve the information yourself. If it is private, you may need to subpoena the account provider or seek to have the producing party collect the relevant information through basic document requests. For example, Facebook does not provide user content in response to a civil subpoena on the ground that the Stored Communications Act prohibits it from disclosing the contents of an account to any non-governmental entity. Facebook suggests that parties in a civil suit produce and authenticate their accounts using tools Facebook provides. In the case of Facebook, pursuing discovery directly from the opposing party through document requests and a court order (not a subpoena) requiring the party to produce the data is likely more cost effective than challenging Facebook’s subpoena policy.
Recently, a court in Pennsylvania ordered yet another alternative: the appointment of a neutral forensic computer expert to access the private portion of the plaintiffs’ Facebook account and identify relevant materials. This creative approach strikes a balance between privacy and litigants’ need for relevant information; and it may be worth considering in other social media discovery situations.
Although it depends on the precise information sought, much of the information stored on social media platforms can simply be collected by the opposing party and produced. Where a subpoena is necessary, court procedures vary, as do the policies of social media companies.