Lobbying Affiliate: MML&K Government Solutions

Digging for Gold: Social Media and the Discovery Process, Louisville Bar Association, BARbriefs, June 2014

Attorneys

Louisville Bar Association, BARbriefs, June 2014

Authored by Benjamin L. Riddle

Social media presents novel obstacles and opportunities in the discovery process. While courts and attorneys continue to grapple with how to best tackle this new form of evidence, the same rules of discovery-and legal common sense-still apply. This article will discuss privacy and relevancy matters and recent decisions, including Sixth Circuit cases, on the issue.

Private Does Not Equal Privacy

Despite social media having existed for years now and mainstream media stories about its negative repercussions in the offline world, litigants continue to harbor a mindset that their social media accounts are private and should be shielded from discovery. Litigants commonly equate a "private" account setting (where pages are not publicly available, but instead can only be seen by friends or followers) with a legal promise of protection.

It is a fallacy to believe that social media - the very purpose of which is to put one's thoughts, feelings, and personal information into the online realm - can be private, even if shared with only a certain number of individuals. With a click of a mouse, the recipient can forward it, an ill-intentioned hacker can pry into it, or an unassuming individual can come across it by accident (such as by using a shared computer). Moreover, a litigant's expectations of limited privacy do not generally impact the discoverability analysis. When initially presented with this issue, courts routinely rejected privacy arguments when it came to social media. The Supreme Court of New York explained this approach well in the case Loporcaro v. City of New York:

When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to the members of the public. Clearly, our present discovery statutes do not allow that the content of such accounts should be treated differently from the rules applied to any other discovery material...[1]

Attorneys do not need to forego the idea that social media can somehow be privileged, but the arguments with regard to discoverability should be focused on the breadth and scope of the requests.

Searching for Social Media Goldmines

There is no denying that social media sites can be goldmines for proving or disproving claims, but how far can one dig for that nugget of key evidence? As litigators well know, the discovery rules allow parties to obtain any information which may lead to the discovery of admissible evidence. Applying this standard to social media, however, is quite difficult. Unlike more traditional methods of communication (such as letters), social media content can be posted with no intended recipient in mind; contain a variety of unrelated topics in one post; involve cross-communication (such as comments and retweets); and may even involve no written communication at all, but still make a statement through photographs, videos, or even "likes."

With the general consensus being that discovery of social media is fair game, courts are now finding that unfettered requests for production are not. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought damages for gender discrimination.[2] The defendants sought to compel discovery of the plaintiff's social media sites with broad requests for production, such as:

The U.S. District Court for the Eastern District of New York denied the motion to compel and held that, "[T]here is no specificity to the requests and no effort to limit theses requests to any relevant acts alleged in this action."[4]

In Mailhoit v. Home Depot, from the Central District of California, the defendant sought a variety of social media discovery, including:

· "[a]ny profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social net-working sites...that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff,"

· "[a]ny pictures of Plaintiff taken during the relevant time period and posted on Plaintiff's profile or tagged or otherwise linked to her profile," and

· "[a]ll social networking communications between Plaintiff and any current or former Home Depot employees or that in any way refer or pertain to her employment at Home Depot or the lawsuit." [5]

The court emphasized that, "Discovery requests for social networking site content must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with reasonable particularity." Based on that principle, the plaintiff was only required to comply with the third request.

In at least one case, the court has reviewed social media in camera. In EEOC v. Honeybaked Ham, the U.S. District Court for the District of Colorado ordered that each class member in the class action produce his or her social media content so that it could be reviewed in camera, with the court then determining relevancy.[6]

In Potts v. Dollar Tree Stores, Inc., the Sixth Circuit's case of first impression on this issue, the plaintiff sued for race discrimination, hostile work environment, and retaliation.[7] The defendant sought to compel production of several items, including, "Facebook and/or other social media data.".[8] In response to the motion to compel, plaintiff produced a number of items including her day planner, documentation concerning her store "write-ups," and saved emails between her and other employees. Plaintiff contended, however, that the defendant was not entitled to full access of her Facebook page because the part of her profile that was available for public viewing did not contain any information undermining her claim. The Court agreed, stating, "The Defendant lacks any evidentiary showing Plaintiff's public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence...[t]hus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff's private Facebook or other social media pages."[9] In a subsequent case also from the Middle District of Tennessee, the court again (citing Potts) found that defendant was not entitled to discover non-public social media data without having made the requisite threshold showing.[10]

CONCLUSION

Social media is here to stay, as is the dispute over its relevancy in any given case. As the courts continue to determine the best way to handle motions to compel social media content, litigants should understand that social media is generally discoverable and their counsel should be prepared to make specific requests for information based upon some reasonable belief that such information will lead to the discovery of admissible evidence.

Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm's Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.


[1] Loporcaro v. City of New York, No. 100406/10, 2012 WL 1231021, *8 (N.Y. Sup. Ct. 04/09/2012).

[2] Kennedy v. Contract Pharmacal, Corp., No.12-CV-2664, 2013 WL 1966219, at *1 (E.D.N.Y. May 13, 2013).

[3] Id.

[4] Id. at *2.

[5] Mailhoit v. Home Depot, 285 F.R.D. 566, 567 (C.D. Cal., Sept. 7, 2012).

[6] EEOC v. Honeybaked Ham, 2012 U.S. Dist. LEXIS 160285 (D. Colo.)

[7] Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, *8 (M.D. Tenn.).

[8]Id.

[9] Id.

[10] Holder v. AT&T Servs., Inc., 2013 U.S. Dist. LEXIS 157560, *8 (M.D. Tenn.).

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