There is very little precedent in Alabama state courts regarding discoverability of social media content in civil cases. Courts in other jurisdictions have held that content from social media sites may be subject to discovery under the applicable rules of civil procedure.[1] Social media content is generally not privileged or protected by privacy rights.[2] In discovery, the requesting party is not granted “a generalized right to rummage at will through information that [the responding party] has limited from public view.”[3] The threshold for determining the limits of discoverability of social media content is similar to those any other discoverable information.
Example Interrogatory and Request for Production:
- Rule 33 Interrogatory: Describe any and all social media accounts or sites that you have an account with or access to and state your username on said accounts, including but not limited to any information on Facebook, Twitter, Google+, MySpace, Instagram, Pinterest, Flickr, YouTube, LinkedIn or any other blogs or other websites that you currently use or have used in the five years prior to the subject collision, including on the date of the collision. NOTE: You are hereby instructed not to delete, erase, or otherwise destroy the content contained on any social media page(s), blog, or other website that contains information, posts, photographs, or other content produced, posted, or otherwise authored by you, throughout the course of this litigation.
- Rule 34 Request for Production: Produce any and all archived posts, information, tweets, photographs, and/or any other material authored or posted by you on any of the above-identified social media or websites used or frequented by you, from the five years preceding the subject collision to the present.
Discoverability of Social Media Content
Most subpoenas to social media networks like Facebook have been quashed, but at least one court has allowed the discovery provided that the information “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims. The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as relevant matter from a personal diary is discoverable.”[4]
The fact that the material being requested in social media content rather than traditional discovery materials should not change the court’s analysis as pertains to discoverability, but rather the court should apply “basic discovery principles in a novel context.”[5] At a minimum, the requested information must be reasonably calculated to lead to the discovery of admissible evidence.[6] “The essential point, however, is that the scope of discovery is defined by the relationship between the information sought and the merits of the case. If the contents of social-media sites are relevant, they are discoverable (subject to applicable limits). If the contents of social-media sites are not relevant, they are not discoverable. The fact that social-media sites offer a new potential source of information does not alter this basic paradigm for discovery.”[7] The requesting party has the burden of showing that the requested material is relevant.[8] Courts seek to protect parties from allowing “fishing expeditions” whereby requesting parties may attempt “to cast too wide a net for any information that might be relevant and discoverable.”[9] The fact the material sought “is in an electronic file as opposed to a file cabinet” does not give license to the requesting party to “rummage” through the entire file, any more than a requesting party would be entitled to peruse the “desk drawers and closets” of the producing party’s home.[10]
Courts are within their purview to limit the scope of requested social media content where the requesting party hasn’t laid sufficient predicate to show that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence, or where the court finds that “the burden imposed on a class of plaintiffs to produce such an overly broad swath of documents, while technologically feasible, is far outweighed by the remote relevance of the information.” [11] The court in Thompson v. Autoliv ASP, Inc. held that all social media content was potentially relevant and discoverable in a personal injury action wherein the Plaintiff has made claims of emotional distress and impaired quality of life, including social media activities.[12]
Method of Production of Social Media Content
It is within the Court’s discretion to require that counsel for the producing party (as opposed to the party himself) review any social media content for relevance and to thereafter produce any relevant material. In this case, counsel for the producing party is the sole assessor of relevancy. Affirmative duties to which the producing party must adhere: (1) the producing party should review all electronic communications made or affirmatively acknowledged by him on any social networking website during the relevant period (“including all status updates, messages sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications”) and (2) produce to the requesting party a copy of all electronic communications belonging or attributable to him as a result of his affirmative actions that discuss or relate to the relevant conduct or state of being. Alternatively, the producing party can give to the requesting party unfettered access to the social networking sites along with a summary of the potentially relevant and discoverable information.
Approaches to authenticating and admitting social media posts:
In Griffin v. State, a Maryland court held that in order to properly authenticate social media posts, the party that would seek to admit it should do one or more of the following: (1) inquire of the purported creator of the content whether he created the profile and the subject post, (2) search the internet browser history and hard drive of the purported creator’s computer in order to determine what computer was used to originate the subject profile and posting, or (3) obtain the social media content directly from the social networking company so as to establish the appropriate creator and link the posting in question to the individual who initiated it.[13]
Adopting a different approach, the Court of Criminal Appeals of Texas, in Tienda v. State, held that the nature of the evidence and circumstances of each case would determine the most appropriate method for authenticating electronic evidence.[14] The party seeking admission of the evidence could (1) offer direct testimony from a witness with personal knowledge of the creation of the content; (2) compare the evidence he is seeking to admit with other authenticated evidence; or (3) offer circumstantial evidence, such as photographs or contextual reference.[15] The standard then for determining whether the evidence was properly authenticated is whether a jury could reasonably find the proffered evidence to be authentic.
The State of Delaware has determined that its existing rules of evidence provided a sufficient framework for authenticating social media evidence, which would be subject to the same authentication requirements as any other evidence.[16] In order to authenticate a social media post, the proponent seeking to introduce social media evidence may use witness testimony, circumstantial evidence, distinctive characteristics, or descriptions and explanations of the technical system or process that generated the subject evidence.[17] The Court may admit the evidence when there is sufficient evidence to support a reasonable juror’s finding that the proffered evidence is what the proponent of the evidence claims it to be.[18]
Final word: Be mindful that these guidelines appear to be in a constant state of evolution, with the courts hoping that the existing discovery rules are broad enough to encompass developing technology and media.
[1] See Jewell v. Aaron’s Inc., 2013 WL 3770837, at *3 (N.D.Ga. 2013); see also Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759, at *1 (M.D.Fla. 2012); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D.Cal. 2012); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 2012 WL 179320, at *2 (E.D.Mich. 2012).
[2] See Jewell, 2013 WL 3770837, at *3; Davenport, 2012 WL 555759 at *1; Tompkins, 278 F.R.D. 387, 2012 WL 179320, at *2.
[3] Tompkins, 278 F.R.D. at 387.
[4] Tapp v. New York State Urban Development Corporation, 102 A.D.3d 620 (N.Y.S.C. 2013).
[5] EEOC v. Simply Storage Mgmt, LLC, 270 F.R.D. 566, 570 (C.D.Cal. 2012).
[6] See Tompkins, 278 F.R.D. at 387; see also Jewell, 2013 WL 3770837, at *3; Mailhoit, 285 F.R.D. at 570; Davenport, 2012 WL 555759 at *1.
[7] Gensler, Steven. “Special Rules of Social Media Discovery?” 65 Ark. L. Rev. 7 (2012).
[8] Salvato v. Miley, 2013 WL 2712206 at *2 (M.D.Fla. 2013)(citing Siddiq v. Saudi Arabian Airlines Corp., 2011 WL 6936485 at *2 (M.D.Fla. 2011).
[9] Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., 2007 WL 119149 at *7 (D.Nev. 2007); see also Davenport, 2012 WL 555759, at *1.
[10] Giacchetto v. Patchogue-Medford Union Free School Disctrict, 293 F.R.D. 112, 114 (E.D.N.Y. 2013)(quoting Howell v. Buckeye Ranch, Inc. 2012 WL 5265170 at *1 (S.D.Ohio 2012); Ogden v. All-State Career School, 299 F.R.D. 446, 450 (W.D.Penn 2014),
[11] Tompkins, 278 F.R.D. at 388; Jewell, 2013 WL 3770837, at *4.
[12] Thompson, 2012 WL 2342928 (D.Nev. 2012) (Requiring the Plaintiff to produce all social media content to Defendant on an electronic storage device, for Defendant to review and identify discoverable material; Defendant was then to produce a list of discoverable material to the Plaintiff for production of a copy of same, whereupon were there any further discovery disputes, the Court would enter specific rulings as to the discoverability of requested material).
[13] See Griffin v. State, 19 A.3d. 415 (2011).
[14] See Tienda v. State, 358 S.W.3d. 633 (Tex.Crim.App. 2012).
[15] Tienda, 358 S.W.3d. at 638.
[16] See Parker v. State, 85 A.3d. 682, 687 (Del. 2014).
[17] Parker, 85 A.3d. at 687-88.
[18] Parker, 85 A.3d. at 688.
