In the Eye of the Beholder: The Relevance of Facebook Evidence

Big Eyes

Social networking litigation will be written by the end users of those websites.  In Bass v Miss Porter’s School, the Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on Facebook.  Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009).

The Plaintiff objected to the Facebook discovery request on the following grounds:

1) The Facebook information was “irrelevant and immaterial” and was “not reasonably calculated to lead to the discovery of admissible evidence;” and

2) “[Plaintiff’s] ability to produce responsive documents was severely curtailed by Defendants’ actions in disconnecting the Plaintiff’s access to her school email and intranet access prior to the filing of this lawsuit.” Bass, at *2.

After subpoenaing Facebook, Facebook agreed to produce “reasonably available data” from the Plaintiff’s profile from January 1, 2008 to May 1, 2009.  Bass, at *2.

The Court ordered the Plaintiff to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced from Facebook to the Court for in camera review.  Bass, at *3.

The resulting production was 100 pages (apparently printed out) to the Defendant and 750 pages produced to the Court.  Bass, at *3.

The Court was noticeably frustrated with the Plaintiff’s attorney.  The Court stated the production offered “no guidance as to the grounds or basis on which her counsel made the determination of which documents to produce to Defendants.” Bass, at *3.

Atomic BombThe Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant after reviewing the Facebook production by date, sender/recipient and subject matter.  Bass, at *3.  The Court found:

The selections of documents Plaintiff disclosed to Defendants and those she referred for in camera review reveal no meaningful distinction. Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook  usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff’s own determination of what maybe “reasonably calculated to lead to the discovery of admissible evidence.” Bass, at *3-4.

The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially in light of the fact the in camera production contained communications clearly relevant to the lawsuit.  Bass, at *4.

Bow Tie Thoughts

This is a wonderful short and sweet opinion on using Facebook information in discovery.  The Court’s recognition that Facebook usage can reflect the state of mind of a user was excellent to see.  The only area somewhat concerning about the opinion was the fact the Facebook discovery was printed and not maintained in a digital form of production.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.


  1. Josh, I wonder just how they would have done a digital production of Facebook data? Assuming from the text, that part of the data included messages within Facebook, it’s not like there’s a MAPI connection you could use to download the messages in electronic form, you are stuck with HTML pages, pulling info from a large database. Not to mention wall posts and other data that is pulled from the FB database backend to be displayed on a profile page. Exactly how would you produce that digitally without having internet access to the “live” data on Facebook’s servers?

    1. I think it would depend on the issues of the case. A party might request Adobe Professional be used to capture the pages of the Facebook profile, which also should maintain the links. Facts might require using something like HT Tracker.

      It is probably worth a phone call to Facebook to see how exactly they produce profile information.

  2. Really enjoy reading cases that deal with social media – and watching how courts are now handling that data. Exciting times as the world of social media is becoming more and more relevant for business…

  3. I’ve used FB nd Myspace pages in litigation – print outs because that was portable, but had planned to display the actual pages at trial. This person had left her profile public (myspace) and open to the school’s/defendant’s network (FB). I sent a lit hold letter that included FB and MySpace and put the pltf on notice that I was going to use it and it could not be altered or destroyed. It worked…we settled once parents and the mediator saw the print outs. Upon a showing in printouts of what is on the page, courts might be willing to order the party to give supervised, read-only access (with oversight by counsel) for discovery and trial use. I’ve met with counsel to review social media sites of parties and then agreed to preserve what was relevant from my perspective to be challenged later if needed.

  4. Because Facebook users can set their privacy settings and allow only some people to view their postings/pages would the content be considered private and not necessarily subject to discovery? Perhaps an in camera review would be permissible as a preliminary matter, but I can’t imagine that someone’s private ramblings would suddenly become discovery fodder without sufficient basis. Furthermore, who owns the content? Is it Facebook because they run the site, or is it the creator of that content?

Comments are closed.