How to Respond to an Objection to Social Media Discovery Requests
In written discovery, you’ve propounded discovery requesting your opponent to identify their social media accounts. You’ve likely also asked them to produce copies of any posts, photographs, tweets, etc. relevant to the litigation. But your opponent has objected to it. Maybe he gave a reason for the objection, and maybe he just objected because that’s his natural impulse. But now you need to support your contention that the social media information you’ve requested is due to be produced.
What caselaw, rules of evidence, or rules of civil procedure exist to support the discoverability of social media content in Alabama?
Social media content is subject to discovery under the broad definitions provided in the discovery rules Alabama Rules of Civil Procedure and is not privileged or protected by privacy rights. Alabama courts have properly admitted into evidence social media content, including relevant statements and photographs from social media accounts. See e.g., Morgan v. Morgan, 183 So.3d 945 (Ala.Civ.App. 2014) (wherein the court admitted evidence, included statements and photographs, from social media site); Davis v. Blackstock, 160 So.3d 310 (Ala.Civ.App. 2014) (wherein photographs from a social media page were admitted into evidence and testimony elicited regarding the contents of the social media page); Grimes v. Saban, 173 So.3d 919 (Ala. 2014) (wherein the contents of the parties’ Facebook pages were admitted and testimony elicited regarding the contents of the social media pages).
The requested information must be reasonably calculated to lead to the discovery of admissible evidence. In a personal injury cases where a plaintiff has alleged injuries resulting from some incident, one can expect that in her deposition, the plaintiff will testify regarding the subject incident and her claimed injuries. Any statements made by the plaintiff, whether on social media or in any other discoverable form, that bear on the subject incident or the plaintiff’s alleged injuries or damages, or abilities either prior or subsequent to the accident are discoverable under the Alabama Rules of Civil Procedure, whether or not the evidence is admissible.
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ala. R. Civ. Proc. 26(b)(1). Therefore, any requests that seek information pertaining to statements made by the plaintiff are permissible and due to be fully and completely responded to.
Even if social media content is discoverable, is it admissible?
Additionally, social media posts that are not privatized or otherwise protected are functionally no different than any other statement made by a party in a public place, and no less discoverable. Anything posted by a plaintiff on any social media accounts is a “statement” as defined by Alabama Rule of Evidence 801(a). Under Alabama Rule of Evidence 801(d)(2) such statements, if offered against a plaintiff, are not hearsay and may be admissible as evidence.
Artwork by Sean MacEntee.