March 30, 2017 Practice Points

Limitations on Discovery of Social Media

Social media content may be relevant to civil litigation and hence discoverable. What limitations might a court impose on such discovery?

By Ronald Hedges

Social media is ubiquitous. Individuals post all kinds of personal details, including images of themselves in recreational activities, to be shared with or circulated to the public or to a limited number of people with who they have real or ephemeral ties. Social media content may be relevant to civil litigation and hence discoverable. What limitations might a court impose on such discovery? One answer is provided by Scott v. USPS, Civil Action No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016).

Scott arose out of a motor-vehicle accident. The plaintiff commenced a civil action and sought damages for personal injuries. One defendant sought discovery of the plaintiff’s social media “about her activities since the accident, which involve physical activity,” and attached to a motion a post-accident image of the plaintiff and her fiancé in ski attire on a mountain. Not surprisingly, the plaintiff resisted the discovery.

The parties resolved their dispute in part. However, the court was left to decide whether certain information about the plaintiff’s social-media accounts should be produced. The court found the information sought to be discoverable under Fed. R. Civ. P.26(f). Nonetheless, the court limited production to all of the plaintiff’s social-media postings, including images, from the date of the accident forward that related to her alleged physical injuries or “reflect[ed] physical capabilities that are inconsistent with” the injuries she allegedly sustained because, as drafted, the discovery request was overbroad.

What lessons does Scott suggest? First, if a party seeks discovery of an adversary’s social media, it would be appropriate to review the party’s public postings for evidence of content relevant to the discovery sought. This avoids the argument that the requesting party is engaged in a proverbial “fishing expedition.” Second, when framing a request for social media, counsel should strive for specificity, both as to subject matter and time period, to avoid argument that the request is overbroad.

Ronald Hedges is with Dentons in New York, New York.

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