Remember to Propound Narrowly Tailored Requests for Social Media

Social media is just another form of electronically stored information. Attorneys are getting very good at making proportional requests for relevant social media in a lawsuit. Judges also know how to rein in overly broad social media requests for production.

In a case with allegations that a tractor trailer negligently rear-ended a car, the Plaintiff requested the Defendant driver produce, “[a]ll social media (including, but not limited to, Facebook, Twitter, LinkedIn, Google+, Tumblr, and YouTube), social networking, blog, and/or internet postings, photographs, uploads, messages, updates, events, and/or entries by Defendant in the 12-hour period immediately before and after the subject wreck.” Pugh v. Junqing, U.S. Dist. LEXIS 164456, at *5-6 (E.D. Mo. Oct. 4, 2017).

The Defendant objected that the request was not narrowly tailored and the production burden was high. Pugh, at *6.

The court narrowed the motion to compel for “all social media content which has any relevance to this case,” and granted the motion in part. Id.

Bow Tie Thoughts

I give the requesting attorneys a lot of credit for drafting a social media request that considered multiple forms of social media that was narrowed to a 12-hour window. Many requests ask for everything under the sun with broad timeframes, so 12-hours is very reasonable. Forensic experts could target their collections to a specific date and period of time with a very high degree of precision (barring nothing weird about the data). The issue is asking for all content over that time, which would include irrelevant information. The Court was very correct to limit the request to content that was relevant to the case.

The opinion does not speak to the issue of the form of production. The instructions in the full request for production might have stated the desired form, but that can be a sticky issue for social media. There are many tools that can capture social media, allow for searching for relevant content, and then do an export with associated metadata. This is extremely helpful for authentication and understanding the context of the social media. Was the post made on a computer or smartphone? Is there location data with GPS coordinates? Will a PDF of the social media be sufficient or is a “native format” required in the case?

Actiance retained me to speak at their upcoming Executive Briefing in Seattle on November 7. I will be presenting new content on social media and messaging in discovery. The material will include analysis of recent cases on discovery and admissibility of social media. If you are in the Seattle area and would like to attend, please visit the Actiance registration page for more information.

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.