When you’re defending a case, I expect you are likely issuing discovery requests to the plaintiff (hopefully, immediately after filing an answer). I expect there is also a high probability those discovery requests include social media discovery requests. If your experience has been anything like mine, those social media discovery requests draw objections more often than not. Here are some things to consider: Are your Interrogatories and Requests for Production narrowly tailored enough to be proper? Was the objection appropriate or just a shot in the dark assuming that you won’t notice or be bothered to make a fuss over it? Do you know how to respond to the objections?
The Significance of Social Media Discovery
Through no fault of his own, a man was involved in a car wreck. To be compensated for his injuries and damages, he sued my client. He claimed as a result of the accident he was no longer able to ride or race motorcycles. We issued discovery requests asking him to identify his social media accounts. He complied. We then scoured one of his social media accounts for anything that we could use to discredit his testimony. We found plenty of photographs and comments that supported our contention that his claims may not be completely genuine.
We brought out some of this at his deposition, and he attempted to explain what we were seeing. Then when he made the same claims in front of the jury, we used even more of the photographs and his own words left in comments sections to impeach his testimony. We achieved a result for our client that likely wouldn’t have been possible without the social media discovery we had obtained.
Social Media Discovery and Objections
If you’re issuing social media discovery requests, they probably look something like this:
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 incident, 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 information, posts, tweets, photographs, and/or any other material authored or posted by you on any social media or websites used or frequented by you and pertaining to either the subject incident or any damages or injuries that you allege have arisen from the subject incident.
And you’re probably drawing objections that look something like this:
Response: Plaintiff objects to this request based on the fact that it is overly broad, calls for information irrelevant immaterial to this accident, is invasive of the plaintiff’s privacy, the retrieval or compilation of which would be unduly burdensome on the plaintiff and is otherwise not reasonably calculated to lead to the discovery of admissible evidence.
Responding to Social Media Discovery Objections
Responding to discoverability and admissibility concerns:
Social media content is subject to discovery under the applicable rules of civil procedure and is not privileged or protected by privacy right, and Alabama courts have properly admitted it into evidence, 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).
As the requesting party, you must be mindful that under the Alabama Rules of Civil Procedure the requested information must be reasonably calculated to lead to the discovery of admissible evidence (which is different from the new Federal Rules of Civil Procedure adopted in 12/2016). Where the plaintiff has alleged injuries resulting from the subject accident, you can reasonably expect in his deposition, the plaintiff will testify regarding the subject incident and his claimed injuries. Any statements made by the plaintiff, whether on social media or in any other discoverable form, that bear on the subject accident or his 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.
Responding to privacy assertions:
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 are admissible as evidence.
For More Information about Social Media and E-Discovery…
… you can attend my cleverly titled webinar, “Social Media and E-Discovery” with Alabama Law Weekly on February 21.
Photo by Jason Howie.
