A recent decision in California, Mailhoit v. Home Depot, U.S.A., Inc. et al., Civ. No. 11-03892 (D.E. 105, C.D. Cal. Sept. 7, 2012) reiterates the limits to which social media information is discoverable. Consistent with Fed. R. Civ. P. 26(b)(1) and 34, the Court made clear in the context of a motion to compel 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.’”
At issue in Mailhoit were four categories of discovery sought by the defendant in connection with the plaintiff’s claims of discrimination and emotional distress:
- Any profiles, postings or messages. . . from social networking sites from October 2005 (the approximate date Plaintiff first claimed she was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff;
- Third-party communications to Plaintiff that place her own communications in context;
- All social networking communications between Plaintiff and any current or former Home Depot employees that pertain to her employment at Home Depot or this lawsuit; and
- Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile.
In analyzing categories 1, 2 and 4, the Court determined that although some communications could support or refute Plaintiff’s claims of emotional distress, Defendant had failed to put “a reasonable person of ordinary intelligence’ on notice of which specific documents or information would be responsive to the request,” thereby failing Rule 34(b)(1)(A)’s “reasonable particularity” requirement.” As a result, Defendant failed to make the “‘threshold showing’ that the request at issue is reasonably calculated to lead to the discovery of admissible evidence.” Indeed, although evidence from social networking sites is neither privileged nor protected for privacy reasons, the requesting party does not have “a generalized right to rummage at will through information that [the responding party] has limited from public view.” Rather, consistent with Fed. R. Civ. P. 26(c), information requests must be “tailored” so that it “appears reasonably calculated to lead to the discovery of admissible evidence.” Simply because a communication may, for example, reflect one’s state of mind, that communication is not necessarily discoverable under Fed. R. Civ. P. 26(c) if it does not relate to the cause of action or damages at issue.
In contrast, Category 3 was deemed a permissible request because it placed Plaintiff on adequate notice of the materials sought and was reasonably calculated to lead to the discovery of admissible evidence.
As a practical matter, when seeking social media discovery, attorneys should ensure that the requests are tailored to the claims at issue. What does that mean? Based upon the reasoning contained in this order, if you are dealing with a personal injury plaintiff who claims disability and loss of enjoyment, you should request, for example, any profiles, posts or messages that reflect the plaintiff’s participation in any travel, sports, recreation or related activities. Simply making a blanket request for all posts will not suffice under the standard set forth in Mailhoit.