Form of Production for Social Media

In a products liability MDL case over an implanted filter in medical devices, the Defendants sought the production of social media posts in native file format. The Plaintiffs had produced the social media as PDFs and had privacy concerns with producing native files. In re Cook Med., Inc., 2017 U.S. Dist. LEXIS 149915, at *1-2 (S.D. Ind. Sep. 15, 2017).

The Federal Rules of Civil Procedure have stated for over a decade that requesting parties can specify the form of production in their requests. In re Cook Med., Inc., at *8, citing Rule 34(b)(1)(C). Responding parties can object and state a different format in their reply. Id., citing Fed. R. Civ. P. 34(b)(2)(D).

Magistrate Judge Tim Baker defined the issue as “not whether the ESI is more easily processed in one format or another, but whether one format is entirely different and too intrusive.” Id.  

The Court limited the Defendants’ access to native files, explaining that a native file contains more information than a PDF, such as specific metadata. Id. However, the Defendants could make specific requests for native files of social media identified by date and content of the post if they could show the post was relevant to the case. In re Cook Med., Inc., at *8-9.

Bow Tie Thoughts

One challenge in understanding cases over the form of production of social media, is that opinions rarely discuss how the data was collected. Were the PDFs of social media screen shots or were the posts collected with a forensic tool? It is entirely possible that a social media collection application would produce a PDF with the requested metadata. Alternatively, how does one define the native application for social media? Is it from an app on a smartphone? Or was it created in Chrome on a MacBook? Not knowing those details makes cases like this a challenge, because the PDF production could have been perfectly adequate. It also could have been highly deficient. Regardless, it is a good idea to discuss the form of production for social media at a Rule 26(f) conference and confirm that data can be viewed in an eDiscovery review application with relevant metadata.

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.