Social media has exploded in recent years, and with it, so has its potential use in litigation—in areas as wide-ranging as divorce, securities, or personal injury.
By now, there has been a litany of cases that have helped to shape the contours of a social media discovery request. In general, requests that are deemed overbroad or characterized as a ‘fishing expedition’ are denied, whereas those that are well-tailored to garner relevant information are granted.
Two recent cases, decided on opposite sides of the country, serve to contribute to, and to refine, this offline discussion about online social media and discovery request best practices.
In Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012) the defendants in a personal injury suit sought to compel disclosure of “the ‘entire contents’ of those and any other social media accounts maintained by or on behalf of the injured party.” The Supreme Court of the State of New York, Appellate Division, Fourth Department, overturned the trial court’s decision and vacated all the discovery requests of the defendants, characterizing them as “overbroad” and a “fishing expedition.” Similarly, the court in Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012) found that the “the request for the entire account, which may well contain voluminous personal materials having nothing to do with this case, is overly broad.”
In Mailhoit v. Home Depot U.S.A., Inc., No. CV 11–03892, 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012), the defendant, in countering plaintiff’s claim of “post-traumatic stress disorder, depression, and isolation,” served four types of discovery requests. The court rejected three of the four, stating they failed the “reasonable particularity” requirement of Rule 34(b)(1)(A), and, as such, were not “reasonably calculated to lead to the discovery of admissible evidence.”
It is useful to look at each discovery request in this case individually, because they provide particular guidance on the Dos and Don’ts of Discovery Requests. Below are the defendant’s discovery requests, and the court’s corresponding decisions:
- Request: “Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state;”
Decision: Denied. Words like “any emotion,” “event” and “significant emotion,” were overly broad and could easily implicate a plethora of irrelevant messages, such as “I hate it when my cable goes out,” or “watching a football game.” The request also failed to place the Plaintiff on notice of the type of information that would qualify as responsive.
- Request: “Third-party communications to Plaintiff that place her own communications in context;”
Decision: Denied. The court found that this discovery request was inextricably linked to the first one, and thus failed for the same reason as #1. Additionally, the court found that the phrase “in context” was also too vague, and failed to provide notice to the Plaintiff of what information was sought.
- Request: “All social networking communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit;”
Decision: Permitted. The request put the Plaintiff on notice of the information desired, was reasonably calculated to lead to the discovery of admissible evidence, was technically feasible, and was not overly burdensome.
- Request: “Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile.”
Decision: Denied. This request was impermissibly overbroad, and a “fishing expedition.” Additionally, there was no showing that every photograph of the Plaintiff taken over a seven year period would be considered relevant under Rule 26(b)(1), or would lead to admissible evidence.
Notably, this court rejected these discovery requests, despite the fact that the language of the requests were modeled—practically word for word—on the discovery request language suggested by the court in EEOC v. Simply Storage Mgmt., LLC, 270 FRD 430, 432 (S.D. Ind. 2010).
One takeaway from these decisions, particularly in Mailhoit, is that social media discovery request standards, like the social networks they target, are an ever-evolving landscape that must be closely monitored. Therefore, rote requests cannot be issued, even if they have been suggested or approved in other contexts; rather, your social media discovery requests must be tailored to the specific facts of your case, as well as to the particular nuances of the law in your jurisdiction.