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.
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.