A significant amount of potentially discoverable information now resides on Facebook, Twitter, and LinkedIn among other social media sites. Government lawyers must stay current on issues involving social media discovery.
1. Do not assume easy access to social media information. Access is not automatic, despite the breadth of discovery permitted under the Federal Civil Rules and many state rules.
2. Consider potential privacy objections. Be aware of the possible threshold objection that the social media postings are private, i.e., limited to a discrete set of people. But, if the court is provided some evidence that the request will yield relevant information, this argument may fail. The court will attempt to balance the parties’ interests. Some courts have required the requesting party to make a threshold showing that publicly available information on the sites undermines the other party's claims.
3. Subpoenas to the social media provider will likely fail. While a party can obtain social media information by deposition notice or subpoena from the subscriber, access to the information by a subpoena to the social media provider is off limits because of the restrictions of the Stored Communications Act.
4. Avoid fishing expeditions. Consider potential objections that may be raised due to a request for all information posted on a particular site as well as postings by others in response. Sweeping requests for information may be rebuffed because a court may be sensitive to privacy concerns. The judge also may conclude that an overly broad request is the kind of "fishing expedition" that is prohibited under the discovery rules.
5. Be sure that the discovery request is focused. Develop a targeted request and, if feasible, accompany that request with a showing that there is reason to believe that relevant information is located on the particular social media account.
6. Investigate and preserve sources of relevant information at the agency. Be aware of the possibility that sources of relevant information may be located on the agency's own website or social media sites. This raises important issues of information preservation. Coordinate efforts with the information technology and/or records management personnel to secure the information from inadvertent (automatic) or purposeful deletion.
7. Be aware of ethical implications. Social media discovery implicates several important ethics issues. Advise your client that modifying or deleting postings or comments on a social media site will be considered the spoliation of relevant evidence and could lead to the imposition of sanctions by the court. Also, avoid the temptation to create a social media account, or to use an intermediary to obtain information about the opposing party or a witness outside the formal discovery procedures. That conduct may violate bar rules on contacts with represented persons.
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