Let’s Not Print Social Media For Productions

Here are two tips on social media discovery:

Tip One: Get an expert who knows how to collect the electronically stored information on social media.

Tip Two: Downloading a Facebook profile, printing it, and conducting document review for redactions is not the best way to produce social media.

SocialMediaExamples_iStock

The Defendants in Stallings v. City of Johnston City, requested the Plaintiff produce the following social media:

Each and every social media posting by Stallings from 2011 to the present concerning her employment at Johnston City, allegations of wrongdoing against her, her suspension or termination, the investigation into missing money or wrongdoing in the Water Department, her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint. This request includes all postings made by Stallings at any time on a Facebook account, Twitter, Instagram, or any other social media site.

Stallings v. City of Johnston City, 2014 U.S. Dist. LEXIS 68566, at *7 (S.D. Ill. May 19, 2014).

The Plaintiff stated that Facebook only allows for a download of data in its entirety. As such, the Plaintiff’s attorney and paralegal spent a week printing and redacting the 500 pages of the Plaintiff’s Facebook account. Stallings, at *7-8.

The Court was not thrilled with the Plaintiff’s claimed technological hardships. The first Court ordered the Plaintiff to produce the un-redacted pages of the Facebook profile, then to produce the entire un-redacted file from 2007 to present day. Id.

The Plaintiff did not identify with whom she had relevant discussions with on Facebook or whether any privileged attached to those conversations. Moreover, the Plaintiff argued that she had conversations with minors on Facebook, but not whether any of those discussions were relevant to the lawsuit. Stallings, at *8.

The Court stated it was clear that the Plaintiff had relevant conversations on Facebook about the litigation. Id. Moreover, the Court recognized that the communications could have admissions against interest and impeachment value. As such, the Plaintiff had to provide the names and residences of the individuals she communicated with on Facebook. Stallings, at *8-9.

The Court ultimately ordered the Plaintiff to produce a redacted hard copy of all relevant Facebook pages from 2011 to the present. The Plaintiff also had to provide defendants with the names and towns of residence of the individuals with whom the Plaintiff had relevant conversations. The Court defined the relevant Facebook pages as those containing statements about this case or the litigation, including discussions of her physical or mental health. The Plaintiff did not have to provide the names and location of minors without a Court order. Stallings, at *9-10.

Bow Tie Thoughts

I thought the requesting party did a good job with their request, because it sought what was relevant to the case, not a social media fishing expedition.

This case highlights the challenges lawyers have in not retaining experts to perform collections. While not directly stated, it seemed the Plaintiff’s attorney was trying to collect the Facebook profile through the download option without an expert and then conduct a manual review. I would encourage a law firm client to try a different approach.

There are products on the market that can be used to collect social media profiles. Some products can capture the data directly, search it, tag it, and produce it. X1 Social Discovery is one such product, but there are other product solutions as well. One of these tools could have made situations like this case much easier to litigation. I would encourage lawyers to look at their different options and find a partner who could assist them. No one should have to print entire social media profiles with the technology we have today.

Social Media Request for Production That Got It Right

Requesting social media relevant to a lawsuit should be done as standard operating procedure now. However, some attorney have a difficult time with narrowing their requests beyond, “Produce your Facebook profile.” Such fishing expeditions are summarily denied. See, Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012), Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013) and Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, at *6-7(M.D. Tenn. Mar. 20, 2013).

Here is a case where the requesting party got it right. The Court ordered the producing party to respond to the following request for production:

“[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.

Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).

Embed from Getty Images

The Court stated that the request sought information about heath conditions that gave rise to the FMLA requests. Id.

In my opinion, the request was narrowly tailored for the issues that are the subject of the lawsuit. This is the sort of thought attorneys need to exercise when requesting social media. A party cannot simply ask for the opposing side’s password to Tumblr or Instagram. A request has to be for information relevant to the lawsuit, not a fishing trip across the adverse party’s Facebook Wall for whose status updates they “liked.”

 

Which Filter Do You Use on Instagram for Conspiracy?

We live in a world where people walk around with phones that have more computing power than the Lunar Lander. A recent case highlighted the importance of how data on these devices can enter a lawsuit.

Rubick's Cube with social media logos

In US v Davis, Instagram photos were used to help demonstrate a conspiracy between the Defendant and others to “lure a victim who posted jewelry for sale on Craigslist to Oakland for the purposes of robbing her at gunpoint.” United States v. Davis, 2014 U.S. Dist. LEXIS 24750, 6-8 (N.D. Cal. Feb. 24, 2014) (the case involved a bail study).

Photos from the Defendant’s smartphone include pictures “pistol, assault rifle, bundled and banded U.S. currency, U.S. currency displayed on a bed and a diamond ring.” Davis, at *7. Based on all the facts presented, the Court decided in favor of detention for the Defendant.

Bow Tie Thoughts

This case is an excellent example of how social media photos can enter a criminal case. The same could be said for civil litigation.

Every civil litigator should add questions about social media usage to their interrogatories, requests for production, and deposition. This is not to conduct a fishing expedition, but if there is a PI or workers comp fraud case, it is a good idea to find any Instagram photos posted to Tumblr of the injured party riding a mechanical bull.

The next step is ensuring the data is properly collected. Instagram is interesting, because photos can be saved to the phone, backed up on the computer, in the app on the phone, and on Instagram’s website. Each has different collection methodologies, so it is important to know what you want, such as just the photo, or the post on Instagram with related comments.

HIPAA & Social Media in Discovery

Some cases are a two for one deal. This one covers HIPPA and social media.

No End-Run Around HIPAA

The Defendants sought a protective order to communicate directly with the Plaintiff’s health care providers without notice to the Plaintiff’s attorney and outside of the attorney’s presence. Ford v. United States, 2013 U.S. Dist. LEXIS 104030, at *2 (D. Md. July 25, 2013).

The Court said no.

Doctors Confer Together

The medical information could still be requested through normal discovery. As a prior Court explained, “there are ‘significant public policy reasons for keeping a plaintiff’s sensitive medical information restricted,’ which HIPAA protects by allowing disclosure of only “expressly authorized, limited, and specifically identified protected health information,” rather than unlimited communications.” Ford, at *2, citing Piehl v. Saheta, Civ. No. CCB-13-254, 2013 U.S. Dist. LEXIS 79401, (D.Md. June 5, 2013).

Social Media Discovery 

Rubick's Cube with social media logosThe Government sought the production of “any documents[,] postings, pictures, messages[,] or entries of any kind on social media within the covered period relating to [c]laims by Plaintiffs or their [e]xperts.” Ford, at *3.

The Court held the Government’s request was not narrowly tailored, thus overly broad and vague.

The Court explained, “[The Request] does not describe the categories of material sought; rather, it relies on Plaintiffs to determine what might be relevant.” Ford, at *5.

The Government’s request covered from September 2009 to present. It also defined claims as follows:

[A]ny factual allegation made by Plaintiff, Plaintiff’s husband[,] or any hired or treating expert in either their report or deposition. These include, but are not limited to: a lack of fluency; inability to initiate conversation; headaches; seizures; general malaise; pain; memory loss; loss of ability to work; loss of ability to continue education; inability to express thoughts or feelings; inability to name or label pictorial items; general inability to communicate; difficulty with semantic expression or usage; difficulty describing events in the past; inability to organize thoughts; inability to do more than one task [at] a time; depression; marital discord or relationships; inability to do activities outside of the house; inability to do activities with kids; inability to go places; inability to interact with friends or family.

Ford, at 3-4.

The Government had also requested “more pointed” discovery requests that would require the production of social media responsive to those requests, so any responsive social media would have to be produced pursuant to the valid requests. Ford, at *5.

Bow Tie Thoughts

Litigants do not have the right to unrestricted access to everything an adverse party ever said or thought. It is time for relevancy to become a trending hash tag in drafting requests for social media.

The Federal Rules of Civil Procedure and case law do not allow direct access to an opposing side’s hard drives as a matter of right. Moreover, even if you got everything (like every email message for three years) that is by no means a victory. It now has to be reviewed.

The same can be said for social media.

Judges have been a steady bulwark of restraint for social media requests. There are a few exceptions of entire profiles being produced, but I think those will be the exception and not the norm.

Requesting social media conceptually is not different than other ESI. The issue is knowing where to look and recognize the different types of social media that an opposing party can have responsive ESI.

Family Law & Social Media ESI

A New Jersey State Court determined the imputed income of a defendant in a child custody case to be $100,000 after reviewing photos from social media submitted by the Plaintiff. Fitzgerald v. Duff, 2013 N.J. Super. Unpub. LEXIS 1376 (App.Div. June 7, 2013). The Court of Appeals reversed the denial of a reconsideration motion.

SocialMediaApps

The Defendant originally stated his income was only $21,000 according to his 2011 tax return. The Plaintiff (the child’s grandmother) offered social media photos of Defendant’s speed boat and a 2011 Chevrolet Camaro. Other social media photos included the Defendant’s “elaborate, tropical wedding, diamond engagement and wedding bands and him throwing $100 bills.” The Plaintiff also offered social media comments evidencing his successful tattoo business. Fitzgerald, at *4.

The Trial Court believed the Defendant made more many then he originally claimed. The Trial Court stated:

[B]ased on everything before me, I believe an imputation of income to the defendant is appropriate. He has a business with two locations. It’s . . . a large cash business and the [c]ourt believes that the records aren’t truly reflective of the income. The problem is that the [c]ourt has nothing other than what was stated last time, which is that there was evidence based on an internet page on MySpace that defendant makes in excess of $250,000 from the business of which he’s the sole owner.

I have the web page, I have photographs of his boat . . . . And certainly the boat, in and of itself, indicates a lifestyle beyond $15,000 per year. I think it’s appropriate . . . without more information, to impute income of at least [$]100,000 per year. . .

The Defendant challenged the finding, offering tax returns and other evidence, such as the age of the boat and that the wedding was paid for by family. The Trial Court rejected this evidence and maintained its original finding.

The Court of Appeals reversed and remanded back to the Trial Court. While the Court of Appeals did find there were factual issues on the Defendant’s income that had to be resolved that involved credibility, the Trial Court did not conduct the “fundamental fact finding” required under state law Rule 1:7-4. This rule requires that a “trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.” Fitzgerald, at *11, citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

Bow Tie Thoughts

A good friend recently asked me what percentage of lawsuits in the United States involve electronically stored information. I think at this point it is easier to identify the cases without some form of ESI.

The above was a child support case where social media photos challenged the amount of income earned by the Defendant. I believe every state court judge hearing cases in Family Court and the TRO calendar see ESI on a daily basis in the form of social media posts, photos and text messages.

Consider the following hypothetical:

Auto accident where liability and damages are disputed.

Pam Plaintiff and Danni Defendant both arrived at the 4 way stop sign at the intersection of Cardozo & Palsgraf at the same time.

Pam’s Smart car was to the right of Danni’s Escalade. 

Both parties claim the other signaled for the opposite driver to enter the intersection first. Both entered the intersection and collided. 

Danni’s Escalade had no visible damage.

Pam’s Smart car was a total wreck. 

Immediately after the accident, Pam took a photo of her car and posted the social media message: “Whoops, my bad.”

Danni Defendant had a “black box” installed by insurance company to encourage good driving habits on her Escalade. Danni has never received a discount on insurance rates for good driving.

This hypothetical personal injury case would have multiple electronically stored information that could be produced in discovery. How many attorneys would actually try to get the data from the “insurance black box”? Would the data be on the device in the car or available from the insurance carrier? How about the smartphone photo, that likely has GPS data? Or the Plaintiff’s party admission on social media?

Not every case will involve Terabytes of data, but it is a good bet there will be some form of ESI to consider, from a text message to a social media post. Attorneys will serve their clients well by considering the different types of electronic evidence that could be relevant in their lawsuits.

Still No Rummaging Through Social Media in Discovery

Dislike-StampCourts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.

Denial of “Twitter Appeal”

TweetingBlueBirdsThe New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

SocialMediaExamplesAmong the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.

HardDriveDisk

The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.