Proper Scope of Written Discovery re Social Media

Social media discovery is all the rage right now and I see many different methods of obtaining it. I have seen various versions of this interrogatory and request for production floating around town:

Interrogatory: If you are a member of, or belong to, any social networking website(s), including, but not limited to, Facebook, MySpace, classmates.com, and/or Twitter, please provide all such website information, including, but not limited to the name of the networking website, all screen names you have registered and/or used with each such website, the date you became a member and/or joined each such website, the last day/time you logged onto and posted information on each such website, and any and all information deleted within 30 days immediately preceding service of these interrogatories.

Request for Production: If you are a member of, or belong to, any social networking website(s), or utilized a blog or website related to your personal activities, interests and/or hobbies, please provide a copy of all such website information as it existed on the date of service of these requests for production. This request includes, but is not limited to: documented copies of screen names, screen profiles, news feeds, profile pictures and/or information, contacts, i.e. friends or followers, messages sent and/or received via the website, contents of any inbox, activity streams, tweets, blerbs, notifications and/or notes.

A prior post discussed how both DCs Bulla & Beecroft have ruled social media content is discoverable.  I suspect this interrogatory is at least passable.  The request for production is probably a bit over broad.  Why?  If a personal injury defendant sent a request for production that asked for every medical record ever generated about a plaintiff, the request would be over broad because it is not limited to the facts of the case as required by Schlatter.  This request probably suffers from a similar defect.  The request likely needs to be restricted to any post concerning the allegations in the complaint.  This is still rather broad as the typical personal injury complaint usually contains very broad allegations about pain and suffering.  See EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind. 2010); Robinson v. Jones Lang LaSalle Ams., Inc., 2012 U.S. Dist. LEXIS 123883, 2012 WL 3763545 (D. Or. 2012).

Federal courts seem to be heading in this direction as to the scope of discovery of SNS (“social network site”) content.

In particular, several courts have found that even though certain SNS content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information that [the responding party] has limited from public view” but instead require “a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” Tompkins v. Detroit Metropolitain Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012); see also Davenport, 2012 U.S. Dist. LEXIS 20944, 2012 WL 555759 at *1 (“A request for discovery [of SNS content] must still be tailored . . . so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.'”) (quoting Fed. R. Civ. P. 26(b)(1)); Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., 2007 U.S. Dist. LEXIS 2379, 2007 WL 119149 at *7 (D. Nev. Jan 9, 2007) (“Ordering . . . release of all of the private email messages on Plaintiff’s Myspace.com internet account would allow Defendants to cast too wide a net for any information that might be relevant and discoverable.”).

Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570-71 (C.D. Cal. 2012).

Mailhoit actually considered substantively similar language to the examples at the beginning of this post and concluded they were over broad.  Given the allegations of employment discrimination, the only request that Mailhoit approved was “all SNS communications ‘between Plaintiff and any current or former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit.’” Id. at 572.

Another consideration is the time frame from which the information is sought.  A request that is unlimited in time can still be considered over broad even if it is limited to relevant information.  In re Christus Health Southeast Tex., 399 S.W.3d 343, 348 (Tex. App. 2013).  Locally, the five year look back period likely would apply and, in a case where residuals are asserted, I would argue everything through and including trial is also relevant.

A typical objection I receive is that a party’s SNS content is “private.”  So are my clients’ internal documents that are routinely requested but they are still relevant and discoverable.  The privacy setting on a party’s social media account has no bearing on discoverability and the objection has failed locally.  Additionally, parties can use in camera reviews to locate relevant social media and overcome “privacy” objections.

In summary, if you are requesting SNS content, make sure the request is specifically tailored to the claims alleged, otherwise a generalized request is likely to be rejected.