Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

In a recent case, Magistrate Judge Mark L. Carman of the United States District Court for the District of Wyoming reminds practitioners that requests for social media data still must be relevant and proportional to the dispute. In this auto accident case, the Court found a balance between the need for defendants to determine whether a plaintiff is lying or exaggerating and the possibility that allowing defendants too much leeway in seeking social media could dissuade injured plaintiffs from pursuing legitimate claims for fear of humiliation and embarrassment.

Plaintiff alleged she sustained physical injuries, traumatic brain injury, posttraumatic stress disorder, anxiety, and depression. In an extraordinarily broad discovery request, defendant requested that plaintiff produce “an electronic copy of your Facebook account history.” Plaintiff downloaded and produced information from her Facebook accounts gathered by using several keyword search terms. However, plaintiff refused to produce her entire Facebook archive, and defendant moved to compel.

The Court explained that “[s]ocial media presents some unique challenges to courts” in determining the proper scope of discovery. In particular, Judge Carman explained:

“People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as to all disclosures, conversations or observations. Now far more reliable disclosures can be obtained with a simple download of a social media history. A few clicks on the computer and you shortly have what can consist of hundreds of pages of recorded postings and conversations of a party. There can be little doubt that within these postings there will be information which is relevant to some issue in the litigation. It is equally clear that much of the information will be irrelevant.”

Defendant argued that the time and expense associated with the production would be minimal, but the Court observed that such an unrestricted production could “generate additional discovery or impact trial testimony” if a party is “required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress.” If that were to happen, there is a “substantial risk that fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.”

The Court concluded that granting defendant’s motion would be “casting the net too wide.” Instead, the Court struck a balance, denying Defendant’s request for social media information from before the accident but ordering plaintiff to produce additional relevant information, including significant emotional turmoil and postings referring to the accident, the aftermath and any of her physical injuries, to the extent such information was not previously produced. Last, the Court ordered Plaintiff to produce post-accident posts and photos which related to Plaintiff’s “level of activity.”

While many courts have addressed requests for social media information in discovery, this case provides an important reminder to practitioners about how to frame and pursue requests. First, requests for social media must be specific and lawyers should be careful about seeking too much information over an unrestricted timeframe. Second, develop a discovery record before seeking judicial assistance. It might be tempting to file a motion to compel as soon as a party refuses to produce all social media information, but a party would be well-served by establishing a discovery record demonstrating an adversary’s use of social media information during the time period in question as well the likelihood of potentially relevant communications.

Scott J. Etish is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.
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