The ever-increasing reach of the Internet in recent decades has had numerous effects on the dynamics of litigation; among other things, the widespread use of social media has created a virtual treasure trove of information for parties involved in lawsuits. Nationwide, federal courts have reached a general consensus that social media is discoverable evidence if made through a request reasonably calculated to lead to the discovery of information bearing on the claim at issue, under Federal Rule of Civil Procedure 34. See, e.g., Davenport v. State Farm Mut. Auto. Ins. Co., 3:11-CV-632-J-JBT, 2012 WL 555759, at *1 (M.D.Fla. Feb. 21, 2012); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D.Cal. 2012); Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320, at *2 (E.D.Mich. Jan.18, 2012). However, jurisdictions vary in their implementation of discovery requests concerning social media.
As an initial matter, courts have consistently held that by sharing social media content with others – even if only with a limited, select group of contacts – a litigant has no objectively reasonable expectation of privacy with respect to that content. Consequently, discoverability of social media is governed by the standard analysis and is not subject to any “social media” or “privacy” privilege.
Social media data is subject to the same duty to preserve as other types of electronically stored information. That duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. All evidence in a party’s “possession, custody, or control” is subject to the duty to preserve. Evidence generally is considered to be within a party’s “control” when the party has the legal authority or practical ability to access it. Many social media platforms make preservation of information simple – for instance, Facebook offers the ability to download a file containing timeline information, posts, messages, and photos, as well as a history of the ads on which the user has clicked and IP addresses that are logged when the user accesses his or her Facebook account. Twitter offers a similar – albeit less comprehensive – option, allowing users to download all Tweets posted to an account by requesting a copy of the user’s Twitter “archive”. Spoliation of social media account information may authorize sanctions – for instance, in Frank Gatto v. United Air Lines (D.N.J. March 25, 2013), after receiving a request to preserve his social media data the Plaintiff deactivated his Facebook account, which was then automatically deleted 14 days later. Defendants then sought and won an adverse inference spoliation sanction against the plaintiff for failing to preserve the account.
There are a variety of ways to handle the fulfillment of a social media discovery request. Some courts have compelled the respondent to provide full account access to the requesting party for a limited time period. See, e.g., Largent v. Reed, No. 2009-1823 (Pa. C.C.P. Nov. 8, 2011). However, turning over the keys to the account appears to be an acceptable solution in only a minority of cases – several jurisdictions, in fact, have affirmed that requests for account login and password are per se unreasonable. See, Trail v. Lesko, No. GD-10-017249 (Pa. C.C.P. July 3, 2012); Chauvin v. State Farm Mutual Automobile Insurance Company, No. 10-11735, 2011 U.S. Dist. LEXIS 121600 (S.D. Mich. Oct. 20, 2011). Alternatively, many courts have ordered in-camera reviews of the subject social media accounts, producing only information responsive to the discovery request. See, e.g., Offenback v. Bowman, a No. 1:10-cv-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011); Douglas v. Riverwalk Grill, LLC, No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D. Mich. Aug. 24, 2012); Nieves v. 30 Ellwood Realty, LLC, No. 570350/12 (Sup. Ct. N.Y. 1st App. Dept. Apr. 11, 2013). At least one court has tried another solution – appointing a neutral forensic computer expert to access the private portion of the plaintiff’s Facebook account and identify relevant materials. Perrone v. Lancaster Reg. Med. Center, No. CI-11-14933 (C.P. Lanc. Co. Penn. 2013).
Social media evidence has played a pivotal role in several recent Georgia trials. Griffin v. New Prime Inc., No. 1:10-CV-1926 (U.S.D.C. ND Ga.), and companion case Lewis v. New Prime Inc., No. 1:10-CV-1228-WSD (U.S.D.C. ND Ga.) concerned a multiple-fatality accident that occurred after a tractor-trailer was hit by a van transporting prisoners. The Defendant in both of these cases was the trucking company. Defense counsel for the tractor-trailer corporation used a Facebook search to secure evidence impeaching the testimony of one of the plaintiffs, who claimed a head injury from the accident prevented him from being able to taste food or be outside in the sunshine. Defense counsel presented the jury with a photograph of plaintiff’s new beach house, which lacked handicap accessibility, as well as photographs of plaintiff’s new boat, shark fishing trips, and a Hawaiian vacation (complete with meal photos).
Georgia courts have generally attempted to impose reasonable limits on social media discovery requests, noting that litigants are not entitled to launch “fishing expeditions” with the hopes of turning up relevant social media information. For instance, the U.S. District Court (N.D. Ga.) in Jewell v. Aaron’s, Inc., No. 1:12-CV-0563-AT (N.D.Ga. 2013) addressed the defendant’s request for “All documents, statements or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your work hours at Aaron’s store” as to 87 opt-in plaintiff employees who alleged that they were forced to work through meal periods. Defendant contended, based on the findings from one exemplar plaintiff’s Facebook activity, that the social media data was likely to show that the Plaintiffs had made social media posts during working hours, thus refuting their claims that the plaintiffs were unable to take breaks during the day because they “had too many work pressures.” The court noted that Facebook allows users to download a copy of their Facebook data into a time-stamped document, and thus the request would not require an unreasonably burdensome effort to complete. However, the court ultimately found that the defendant failed to reach the threshold showing of relevancy for the broad range of electronic data requested, stating that the available evidence and defendant’s proffered rationales for production did not convince the court “that the broad nature of material [defendant] seeks is reasonably calculated to lead to the discovery of admissible evidence.” Id. at 8. Further, the court noted that “whether or not an opt-in plaintiff made a Facebook post during work house may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period…” Id. at 8. Concluding that the burden of defendant’s request outweighed the potential relevance of the information, the request was denied.
It is instructive to contrast Jewell, supra with Bryant v. Perry, No. 5:09-CV-060 (S.D. Ga. 2010), in which the plaintiff claimed injury resulting in a reduced quality of life, and sought compensation for past and future pain and suffering, past and future medical treatment, and lost wages. Defendant filed a motion to compel requesting an inspection of all data contained in the plaintiff’s Facebook account, on the grounds that the account likely contains information about the plaintiff’s life, activities, physical condition and quality of life since the subject accident occurred. The court noted that the plaintiff’s Facebook account privacy settings prevented anyone outside of his 339 friends from viewing his profile, but held that it there was likely to be photographs, wall postings or comments on the Facebook page relevant to the claims and defenses of both parties. The court denied defendant’s request to access the Facebook account directly, but ordered that plaintiff would accept a Facebook friend request from a ‘John Doe’ account created by the court, which would then perform an in-camera review of the plaintiff’s account and provide defendant with responsive information relevant to the plaintiff’s contentions (after giving plaintiff’s counsel an opportunity to review and object to the production of any portions of the materials).
The law relating to discovery of social media data is still relatively new and developing, but decisions from courts across the country make clear that a litigant’s Facebook, Twitter, Pinterest, Instagram etc. accounts may well be subject to discovery requests under certain circumstances. It behooves anyone involved with ongoing or potential future litigation to be mindful about what social media may exist pertaining to the existing or potential claim, and to assess how that information may impact the matter.