Proportional Social Media Requests for Production

In an auto accident case, the Defendant insurance company sought discovery from a Plaintiff’s Facebook, Twitter, and Instagram accounts. The Plaintiff objected to all three account requests as “invasion of privacy and not relevant.” Ehrenberg v. State Farm Mut. Auto. Ins. Co., No. 16-17269, 2017 U.S. Dist. LEXIS 132036, at *3 (E.D. La. Aug. 18, 2017).

There are Courts that cite the 2015 Federal Rules of Civil Procedure and tack on case law citations that say the scope of discovery is for information “reasonably calculated to lead to the discovery of admissible evidence.” See, Quinonez-Castellanos v. Performance Contractors, Inc., No. 16-cv-4097-LTS, 2017 U.S. Dist. LEXIS 126018, at *6 (N.D. Iowa Aug. 9, 2017) citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). That is wrong.

US Magistrate Judge Janis van Meerveld corrected the Defendants who made the “reasonably calculated” argument in the current case, stating that 2015 Amendments deleted that language from Rule 26. The current Rule 26(b)(1) states that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Ehrenberg, at *3-4.

The Court determined that the Plaintiff’s social media was relevant to the case, but the Defendant’s request was overly broad. As one Court described social media requests, “Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home.” Ehrenberg, at *6, citing Smith v. Hillshire Brands, No. 13-2605-CM, 2014 U.S. Dist. LEXIS 83953, at *5 (D. Kan. June 20, 2014). That is an accurate description of the problem with overly broad discovery requests, because no requesting party should have total access to someone’s life.

The Court limited the social media requests to meet the proportional needs of the case as follows:

  1. Posts or photos that refer or relate to the accident.
  2. Posts or photos that refer or relate to physical injuries that Ms. Ehrenberg alleges she sustained as a result of the accident and any treatment she received therefore.
  3. Posts or photos that refer or relate to other, unrelated physical injuries suffered or sustained by Ms. Ehrenberg.
  4. Posts or photos reflecting physical activity by Ms. Ehrenberg and/or which reflect a physical capability of Ms. Ehrenberg.
  5. Posts or photos that refer or relate to emotional distress or mental anguish that Ms. Ehrenberg alleges she sustained as a result of the accident and any treatment she received therefore.
  6. Posts or photos that refer or relate to any alternative potential emotional stressors experienced by Ms. Ehrenberg.
  7. Posts or photos that refer or relate to any vacations taken by Ms. Ehrenberg, including but not limited to the specific vacations referred to by State Farm in its Motion to Compel.

Ehrenberg, at *8-9.

Bow Tie Thoughts

There is no doubt that social media can be highly relevant in a personal injury case. People frequently live their lives online, recording their state of mind, making present sense impressions, and admissions. All of those can be highly relevant to a case. However, that does not mean a requesting party gets to access every comment that has been, every “like,” Re-Tweet, of anything that is irrelevant to a case. Moreover, who would actually want to review three social media profiles? It is in the requesting party’s best interest to make their requests proportional to the claims in the case.

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 in 2013, 2014, and 2015, 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.