October 05, 2018 Articles

From Snaps to Tweets: The Craft of Social Media Discovery

Parties must take care to tailor their discovery requests to information that is both relevant and proportional to the needs of the case.

By Matthew J. Hamilton, Donna L. Fisher, and Jessica K. Southwick

Social media users create a candid digital record of their experiences, thoughts, and feelings. Such information may be relevant in litigation and, crucially, has not been subject to a lawyer’s filter. For example, as the cases below show, vacation photos shared on social media can effectively undermine a claim that an injury has rendered a plaintiff unable to enjoy life. Likewise, defendants’ or their employees’ interactions on social media may serve as the basis for a discovery request for social media or undermine a defense. Courts have consistently held that social media accounts are subject to established discovery principles, but courts are reluctant to allow parties to rummage through private social media accounts. Accordingly, requests for access to information from Facebook, Twitter, Instagram, Snapchat, and other social media platforms must be carefully tailored.

In a recent case, the defendants sought all social media in native format relating to the plaintiff’s travel and social activities. The court denied the request because it was not limited by substance or time frame and because the requesting party had not made a sufficient showing of relevance to justify production in native format. This case and other recent cases in federal and state courts provide a few practice pointers for social media discovery:

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