Requesting Social Media in Discovery

Social media is just another form of electronically stored information. Requests for social media in discovery have dramatically improved since the days of lawyers requesting entire Facebook profiles or Twitter accounts. Case in point, here is a defendant’s request for social media from a recent personal injury case:

Produce all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.

Scott v. United States Postal Serv., No. 15-712-BAJ-EWD, 2016 U.S. Dist. LEXIS 178702, at *2-3 (M.D. La. Dec. 27, 2016).

The Plaintiff objected to the request for production, claiming that, “the information requested is inclement, immaterial and not reasonably calculated to lead to the discovery of admissible evidence.” Id.

A pseudo-meet and confer followed over email, with the Defendants explaining they requested photos of any type of physical or athletic activities since the accident. Scott, at *5. Defendants further explained what they meant by “physical activity,” which included “walking a dog, hiking, skiing, playing soccer, or running a race.” Scott, at *6.

The Court agreed that the social media the Defendants sought was relevant to the case. However, the Court held that the request was overly broad. The Court narrowed the scope of the request to beginning at the date of the accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident. Scott, at *13-14.

Bow Tie Thoughts

Scope is key to drafting discovery requests. Determining the proper date range for the scope of a case can help ensure that requests for electronically stored information are narrowly tailored. Other factors are the claims of the case, underlining facts, specific individuals, and other objective information to focus discovery requests. This requires strategic thinking, so lawyers should ask themselves, what do we need to prove our case? What is the story we want to tell at trial?

Social media ESI can contain anything from party admissions to useful impeachment material. However, given how often people post to Twitter, Facebook, Instagram, Snapchat, and other platforms, lawyers do not want gigabytes of irrelevant information. Focusing requests can help ensure litigation is cost effective for both the requesting and producing parties.

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.