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).

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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.”

 

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.

2 comments

  1. Great request, assuming that the requestor defined the traditional but wiggly phrase “relate to” to minimize vagueness, something like this:

    “Documents that ‘relate to’ any matter shall mean documents that, on their face, reflect, refer to, embody, evidence, or mention, that matter.”

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