November 14, 2012 Top Story

Discovery of Facebook Posts No Longer A Given

A district court bucks the trend of allowing broad discovery of social media

Andrew J. Kennedy

Over the past few years, courts have provided litigators with broad latitude in discovery of social media. Litigators often target information juggernaut Facebook because it provides a pool of potential facts to challenge a party’s claims or defenses. The U.S. District Court for the Central District of California recently precluded such an attempt. That decision departs from prior rulings and suggests that federal courts may be pulling back from allowing unfettered discovery of social media.

Facts and Ruling of Mailhoit v. Home Depot, U.S.A., Inc.

In Mailhoit v. Home Depot, U.S.A., Inc., [PDF] the district court refused to compel the production of a party’s Facebook posts and photos. The plaintiff alleged that her former employer had terminated her because of a disability, causing her to suffer depression-related symptoms. The former employer denied causing the damages, arguing that the plaintiff maintained a Facebook account and that the publicly available information from that account undermined her claims of isolation and loss of friendship.

The employer wanted to discover the individual’s private posts and photos, as well as other social media, to test her claims for emotional damages. It sought discovery of any social media postings that related to her emotional state. It also sought any third-party communications that placed her postings in context, any communications with current or former employees, and any pictures taken of her over a seven-year period.

The district court rejected all of the requests except for the communications with employees. The key factor for the district court’s decision was the burden that would be placed on the plaintiff to respond to the requests, stating that “[t]he language of the request does not provide sufficient notice to the responding party of what could be considered responsive material.”

The court also expressed concern about privacy issues triggered by the discovery requests, reasoning that a party does not have a “generalized right to rummage” through private posts. For these privacy-related requests, the court stated that a party must first show that the information is calculated to lead to admissible evidence.

Under that discovery standard, the court found the requests too broad. It also considered the request for seven year’s worth of photos to be akin to a fishing expedition.

Court Rejects Decision Permitting Broad Discovery 

In reaching its decision, the court rejected the discovery approach taken by the U.S. District Court for the Southern District of Indiana in EEOC v. Simply Storage Management [PDF]. That decisionis cited often by litigators seeking broad discovery of social media. It involved compelling production of documents for requests nearly identical to those requested in Mailhoit.

The Simply Storage court favored disclosure of nearly the identical requests because of the likely relevant social media content. It said that“[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.”

The Mailhoit court criticized the Simply Storage court’s approach, arguing that it failed to give proper weight to the parties’ ability to carry out the order. Although the Simply Storage court acknowledged that it had not drawn a clear line, it stated that counsel could assure compliance with the order because discovery “is intended to be a self-regulating process that depends on the reasonableness and cooperation of counsel.” Mailhoit rejected that approach and concluded that if a party could not fairly determine if a production was responsive then the discovery requests were too broad under Rule 34(b)(1)(A).  

Drawing a Line on Discovery of Social Media

“The Mailhoit Court was signaling that just because there is all of this information out there that this does not give you the right to ask for everything,” says Helen E. Casale, Norristown, PA, cochair of the ABA Section of Litigation’s Family Law Litigation Committee. “The Court was concerned because the plaintiff really could not know if she complied with the requests.”

But that stricter approach concerns some litigators. “It was the wrong decision,” says Kevin J. O'Connor, River Edge, NJ, subcommittee chair of Sound Advice for the Section of Litigation’s Employment and Labor Relations Committee. “The decision does not give much guidance.”

Social media is one of the best ways to test a plaintiff’s claimed injuries, suggests O’Connor. “People lie all the time,” he says. “When they are online they tend to be candid.” That makes it easier for a defendant to defend himself or herself. Social media, he says, “gives a snapshot of what a person’s life is really like.”

Educating Courts and Clients

“The court seems to have really put a low value on this type of evidence,” says O’Connor. Attorneys may still have to educate judges about the nature and value of social media, suggests Casale. This includes showing how revealing it can be and how different social media sites work. She also educates clients; she reminds them not to post criticisms about courts, judges, or other parties.

Evidence from social media can be dispositive under certain circumstances. Casale explains that Facebook can tell you where someone was, when, and what they were doing. “That can be key in a custody battle,” she says.

That importance is driving requests for social media. According to O’Connor, it is already a standard discovery request in employment discrimination cases and is growing in other practice areas. “It's hotter than even a year ago in family law cases,” says Casale.

Mailhoit’s lesson may be that it reinforces Civil Rule 37’s command to confer before moving to compel. “Understand what you’ve asked for, what the objections are, and the context,” says Jessica K. Hew, Orlando, FL, cochair of the Section’s Pretrial Practice and Discovery Committee. If you take that obligation lightly and have to bring it up to the judge, she says, you may well lose.

Andrew J. Kennedy is a contributing editor for Litigation News.

Keywords: social media, social networking, discovery, Civil Rule 34, Civil Rule 37

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