This article was previously published in Laches (Aug. 2011) and was reprinted in the State Bar of Michigan, Labor and Employment Lawnotes, Winter 2012.

1.        SOCIAL MEDIA INFORMATION IS GENERALLY DISCOVERABLE

Social media has dramatically changed how humans interact with each other and the digital footprint left by individuals on sites like Facebook, Twitter, LinkedIn, and YouTube must not be discounted when formulating discovery plans.  Rather, attorneys must embrace social media as part of the “new normal.”  Discovery through the lens of social media should not be viewed as new and unfamiliar territory.  Posts on social media are just additional ways for individuals to document their lives like diaries, letters, photo albums, or emails.  An individual’s posts may document things that are seemingly innocuous at the time but could literally make or break a case later.  Consider how valuable a time-stamped post on Facebook documenting an individual’s mood – including as expressed in pictures – may be to either buttressing or undermining that individual’s claim for emotional distress damages.[1]  Attorneys would be remiss to not at least probe to see whether an individual’s social media site contains discoverable material or confirm that broad discovery requests – like those seeking all communications about the individual’s claims – include communications via social media.  Such discovery is exactly the type of discovery contemplated by Rule 2.302 of the Michigan Court Rules and Rule 34 of the Federal Rules of Civil Procedure, both of which expressly include “electronically stored information” in the scope of permissible discovery.[2]

A.        Content Must be Relevant

Whereas courts[3] and attorneys[4] are just now grappling with social media, it is clear that courts are applying traditional discovery rules to social media content.  One of the leading cases in this developing area of the law is EEOC v. Simply Storage Management LLC.[5]  In Simply Storage, the EEOC filed a sexual harassment complaint against the employer and the employer’s attorneys served document requests seeking the content of the complaining employees’ social networking sites to obtain information about the employees’ emotional health.  They requested:

Request No. 1: All photographs or videos posted by [employee] or anyone on her behalf on Facebook or MySpace from April 23, 2007 to the present

Request No. 2: Electronic copies of [employee]’s complete profile on Facebook and MySpace (including all updates, changes, or modifications to [employee]’s profile) and all status updates, messages, wall comments, causes joined, activity streams, blog entries, details, blurbs, comments, and applications . . . .

The EEOC objected, and upon the employer’s motion to compel, the court rejected the idea that discovery of social media or other electronically stored information is unique.  “Rather,” the court stated, “the challenge is to define appropriately broad limits – but limits nevertheless – on the discoverability of social communications in light of a subject as amorphous as emotional and mental health . . . .”[6]  The court detailed some general guiding principles before discussing the specific requests at issue.

First, the court rejected the argument that since the social media profiles were “locked” or “private,” they were not discoverable due to privacy concerns as such concerns could be “addressed by an appropriate protective order . . . .”[7]  Additionally, privacy arguments by those attempting to prevent the discoverability of social media are undermined “by the fact that the production . . . would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.”[8]  The very purpose of social media undercuts such an argument: “Facebook is not used as a means by which account holders carry on monologues with themselves.”[9]

Second, the court emphasized that the material requested must be relevant to a claim or defense in the case.  The employer had requested access to the employees’ entire Facebook and MySpace accounts, but according to the court did not show why such broad access was relevant to the employees’ claims for emotional damages.  “[T]he simple fact that a claimant has had social communications is not necessarily probative of the particular mental and emotional health matters at issue in this case.”[10]

Third, when an employee makes claims for emotional damages, “[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.  Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.”[11]  The discoverability of social media information should be broader, according to the court, than just “communications that directly reference the matters alleged in the complaint” as argued by EEOC.[12]

Turning to the case at hand, the court narrowed the employers’ requests, while still allowing significant social media discovery:

[T]he 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 [social media] applications for [the employees] . . . 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.[13]

As for the employer’s request for pictures on social media pages:

The same test set forth above can be used to determine whether particular pictures should be produced.  For example, pictures of the claimant taken during the relevant time period and posted on a claimant’s profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status.  On the other hand, a picture posted on a third party’s profile in which a claimant is merely ‘tagged’ is less likely to be relevant.[14]

Such a holding provides the framework for litigators who seek to discover (or prevent the discovery of) social media information.  “The court’s determination of relevant material is crafted to capture all arguably relevant materials, in accord with the liberal discovery standard of Rule 26.  In carrying out this Order, the EEOC should err in favor of production.”[15]

Also applicable is the case of Mackelprang v. Fidelity National Title Agency of Nevada, Inc.[16]  In Mackelprang, the plaintiff alleged sexual harassment and other claims against her employer.  At issue was the employer’s motion to compel private communications on plaintiff’s MySpace page after subpoenas to MySpace resulted in the production of only public information.  The employer claimed that such communications would show that the plaintiff “was a willing participant who condoned and actively encouraged the alleged sexual communications . . . and sexual conduct” at the basis of her claims.  Rejecting this argument, the court found that the employer was “engaging in a fishing expedition since . . . it has nothing more than suspicion or speculation as to what information might be contained in the private messages.”[17]  It did so, relying upon Federal Rule of Evidence 412(a), because there was not “a sufficiently relevant connection between . . . plaintiff’s non-work related sexual activity and the allegation that . . . she was subjected to unwelcome and offensive sexual advancements in the workplace.”[18]  Even if such evidence were relevant, the court continued, “its probative value as to either liability or damages is not substantial enough to outweigh the unfair prejudice that its admission would cause.”[19]

The employer in Mackelprang also argued that plaintiff should produce all of her email communications via MySpace in order to review for plaintiff’s admissions or for impeachment purposes.  While the court rejected this argument on similar relevance and overbreadth concerns,[20] it did not preclude the employer from obtaining some of the private messages.  Instead, it suggested that the employer “serve upon [p]laintiff properly limited requests for production of relevant email communications.”[21]  The court stressed that it was not preventing the employer from “serving such discovery requests on [p]laintiff to produce her Myspace.com private messages that contain information regarding her sexual harassment allegations . . . or which discuss her alleged emotional distress and the cause(s) thereof.”[22]

In sum, the Simply Storage and Mackelprang decisions find a balance between producing all social media information and no social media information.  Instead, they dictate that social media information is discoverable when adequately tailored to satisfy the relevance standard.[23]

B.        May a Social Media User Limit Discovery Based Upon a Privacy Objection?

As noted in Simply Storage, it is difficult for an objecting party to successfully object to producing social media information on privacy grounds.  Social media users affirmatively place information about themselves on sites to be shared with other users.  A few recent state courts outside of Michigan have found individuals have no privacy protections even when individuals take affirmative steps to limit who can view their social media sites.  Romano v. Steelcase Inc, for example, is a personal injury case with the plaintiff claiming “permanent injuries” resulting from the defendant’s conduct.[24]  After portions of the plaintiff’s publicly available social media site revealed plaintiff still maintained an active lifestyle and traveled during the relevant time period, the defendant served discovery requests accordingly.  The court rejected the plaintiff’s argument that the defendant’s attempt to secure access to the “non-public” portions of her site, stating “[t]o deny [d]efendant an opportunity [to] access . . . these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone [p]laintiff’s attempt to hide relevant information behind self-regulated privacy settings.”[25]  Further, the very fact that the social media sites at issue – Facebook and MySpace – remind users that postings are not private when plaintiff signed up are evidence that “she consented to the fact that her personal information would be shared with others, not withstanding her privacy settings.[26]  Even assuming plaintiff had a privacy interest in her “non-public” site, the court concluded that such an interest was outweighed by the defendant’s need for the information.[27]

A similar holding occurred in McMillen v. Hummingbird Speedway Inc., another personal injury case with the defendants seeking information to disprove plaintiff’s injuries.[28]  In McMillen, the defendants sought and successfully obtained plaintiff’s login and password information.  The court specifically relied upon the terms of use for Facebook and MySpace to dismiss plaintiff’s privacy objections: “[R]eading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else.”  This is because both sites reserve the right to collect and disclose information.  Regardless of the steps users take to limit the information flow on social media sites, “their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion.”  The court then ordered plaintiff to provide his login and password information to the defendants for their review.[29]

2          SUBPOENAS TO SOCIAL MEDIA SITES LIKELY WILL NOT WORK

In addition to seeking discovery from party participants, may a party seek to enforce third party subpoenas to social media sites?  Facebook, for instance, will not disclose “user content (such as messages, Wall posts, photos, etc.) in response to a civil subpoena.”[30]  Instead, it will only provide “basic subscriber information . . . ‘where: 1) the requested information is indispensable to the case and not within the party’s possession; and 2) you personally serve a valid California or federal subpoena on Facebook.  Out-of-state civil subpoenas must be domesticated in California and personally served on Facebook’s registered agent.”’[31]

A recent decision from a California federal court supports Facebook’s policy that subpoenas to social media sites are generally not enforceable to the extent they seek private user content.  In Crispin v. Christian Audigier, Inc, an artist sued several licensees and the defendants subpoenaed several social media sites seeking plaintiff’s “basic subscriber information” as well as a communications, in part, about the defendants.[32]  The plaintiff filed a motion to quash arguing, in part, that the Stored Communications Act (“SCA”) [33] prohibited such disclosure.  Generally, the SCA prohibits the disclosure of “private communications to certain entities and individuals.”  The court quashed the subpoenas on SCA grounds.

Crispin has several significant holdings.  First, the plaintiff had standing to quash the subpoenas.[34]  The court reasoned that “an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.”[35]  Second, the court found that the social media providers at issue – including Facebook and MySpace – constituted electronic communication service (“ECS”) providers under the SCA.[36]  Under the SCA, ECS providers are prohibited from disclosing information contained in “electronic storage.”[37]

Most significantly, the court determined that the information sought by the defendants was “electronic storage” and thus quashed the subpoenas to the extent that they sought “private messaging” not readily accessible to the public.[38]

While Crispin is likely not the last word on whether the SCA prohibits subpoenas directed at third-party providers like Facebook and MySpace,[39] its lesson appears to be that parties should alternatively craft appropriate discovery requests within the parameters discussed in the prior section.[40]  Indeed, Facebook suggests as much:

Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebook’s “Download Your Information” tool, which is accessible through the “Account Settings” drop down menu.

If a user cannot access content because he or she disables or deleted his or her account, Facebook will, to the extent possible, restore access to allow the user to collect and produce the account’s content.  Facebook preserves user content only in response to a valid law enforcement request.[41]

3.        DUTY TO PRESERVE

There is currently no published court decision discussing the duty to preserve evidence maintained on social media sites.[42]  Given the possible relevance of material contained within social media websites and an individual user’s ability to control information on social media – including altering, restricting, or deleting information[43] – this area is likely to be confronted by the courts in short order.  That said, it appears logical and fairly straightforward that a party has an affirmative duty to maintain data stored on social media given recent e-discovery decisions.[44]  At the very least, employers have an obligation to maintain documentation about the process and information obtained in making employment decisions and this would presumably include, for example, solicitations for and applications received via social media. 

4.        CONCLUSION

One of the unique aspects of social media posts is its potential permanence, given that it can be stored indefinitely somewhere on the Internet, regardless of the initial site on which it was posted and the user’s intent.  Take for example the well-publicized “tweet” that was sent from Chrysler’s official Twitter account by an employee of a social media agency: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to (expletive) drive.”  Chrysler deleted the tweet almost immediately, but it remains forever available on the Internet as it was re-tweeted several times before being deleted.

Regardless of whether one is propounding or receiving discovery requests, such permanence, combined with the exponential growth of social media across all demographics, makes discovery of social media information inevitable.  While courts have provided limited guidance so far, all indications are that courts do not view social media discovery any differently than traditional discovery.  At the end of the day, information contained on social media sites is likely discoverable assuming it passes the relevancy threshold.