Trial Magazine

Social media can be an extremely valuable resource for trial lawyers, but as technology has expanded, the concept of “social media” has evolved to include nearly every form of electronic communication across a variety of messaging applications. Social media users now can share multiple types of content, including text (status updates, comments, and messages); photos; videos; audio; graphics; and links. This sharing of information—whether personal or work-related—allows people, businesses, governments, and organizations to broadcast information to third parties. In the context of litigation, the information that users collect and share can be extremely valuable from an evidentiary standpoint.

Because this content is easily modified or destroyed by the user, the recipient, or the social media platform or app itself, knowing what is out there and obtaining it can be an uphill battle.¹ Here are some strategies for preserving, collecting, and producing your clients’ information and knowing what to request from defendants in discovery.

Platforms and Apps

To meet your discovery obligations and obtain the full scope of information available from the defense, first become familiar with current social media platforms and apps, which are constantly growing and evolving.

Traditional social networking apps. Platform-based social networking through apps such as Facebook, Instagram, LinkedIn, TikTok, Twitter, and YouTube is the most popular form of social media. While these apps differ in some respects, they share similar features and allow users to post messages, photos, and other multimedia. Many of these apps also have privacy settings that allow users to control who has access to the content posted.

‘Over-the-top’ messaging apps. “Over-the-top” messaging differs from standard text messaging because users’ texts don’t go through standard cell phone telecommunication providers. Instead, these messages pass through the internet and can operate across multiple platforms that are accessible by cell phones, laptops, and other devices. Examples of these apps include Facebook Messenger, Kik, LINE, and WhatsApp.

Ephemeral messaging apps. Ephemeral messages are self-destructing or self-deleting, meaning they automatically disappear from the recipient’s screen or social media page after being viewed. These messages—which can include text, photographs, or even video—are transmitted through apps such as Signal, Snapchat, Telegram, and Wickr.

Cloud-based collaboration. Cloud-based collaboration apps such as Asana, Discord, Microsoft Teams, RingCentral, Slack, and Wrike are designed to allow multiple team members to communicate through a single platform. These apps, which are often used in workplace or school settings, are commonly used for video conferencing, file sharing and editing, and team messaging.

Because each of these platforms and apps have unique characteristics and support different types of content and data, you must know what social media is available in each case. Without this understanding, it will be difficult to effectively complete discovery.

Advise your clients of their preservation obligations in writing at the outset of a case.

Relevance and Proportionality

Whether you seek to discover defendants’ social media content or defendants serve social media discovery requests on your client, you’ll likely face multiple challenges, typically involving relevance and burden issues. Generally, courts do not treat social media differently from other documents sought via requests for production. However, the nature of social media sources creates additional practical limitations that implicate proportionality principles because of the volume and accessibility of the information available.

As with every type of evidence, whether social media content is discoverable depends on the particular jurisdiction’s discovery mandates. In federal court, the scope of discovery focuses on whether the evidence is “relevant to any party’s claim or defense and proportional to the needs of the case.”²

Given the wide realm of information available on these apps, social media evidence may be relevant for many different reasons based on the facts, circumstances, and legal issues involved. It can, for example, help establish a party’s liability, physical or mental state, control, bias, location, damages, and facts related to a specific event.³

But while a party can argue that social media evidence may provide relevant information, courts have tempered the scope of disclosure. Like discovery of other forms of electronically stored information, a party generally cannot inspect or obtain all data from a particular source.⁴

Courts regularly have denied attempts to obtain unfettered access to social media accounts and have rejected unlimited requests for social media data.⁵ As one court reasoned, ordering the plaintiff to grant access to social networking accounts “would permit defendant[s] to cast too wide a net” and a “defendant is no more entitled to such unfettered access to [a] plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in [a] plaintiff’s home.”⁶

Tailoring discovery demands. Draft and serve social media discovery requests with specificity. The more closely tailored your demands are to the facts of your client’s case, the more likely you are to succeed should a motion to compel be required. There are no uniform guidelines as to what that may be, so consider the nature of the content available, the accessibility of this content, and how it will apply to your client’s claims.
The amount of data available can vary from a few items to tens of thousands of messages and posts. In either circumstance, a broad request for production may be justified in some situations. For instance, when an injured party claims a physical impairment that affects his or her daily life, a large portion of the party’s account history may be discoverable.

If you cannot articulate a specific need for the data, courts will be more likely to limit discovery. In addition, requests that do not provide reasonable limitations on time or scope may be considered harassing, burdensome, or otherwise improper.⁷ In certain situations, these “frivolous” requests, if found to be too intrusive, could be grounds for sanctions.⁸

As an example, in Chauvin v. State Farm Mutual Auto Insurance Co.—a first-party no-fault case that arose from injuries sustained in a motor vehicle collision—the defendant insurance company sought to compel the production of the plaintiff’s Facebook username, email address, and password; print-outs of “any and all” of the plaintiff’s Facebook activity; and the name, address, and telephone number of each of his Facebook “friends.”⁹

The judge denied these requests and awarded costs to the plaintiff, noting that the defendant failed to show how the plaintiff’s Facebook posts were relevant to its argument. The court also held that the request for the Facebook friends’ contact information was “absurd and overly-broad in the extreme.”¹⁰

Do not, however, assume that all social media information is beyond the scope of discovery simply because users have set their account status to private. Whether a user has enabled an app’s privacy settings has no bearing on the discoverability of the evidence.¹¹ Again, courts generally will not allow unfettered access to a party’s information,¹² but they have allowed unrestricted production of accounts when they find that the responding party withheld relevant social media evidence.¹³ As with all discovery issues, each party must comply with its discovery obligations and act reasonably and in good faith.¹⁴

Preserving Your Client’s Data

The obligation to preserve information typically arises under common law. While not explicitly defined in the Federal Rules of Civil Procedure (FRCP) or in most state rules, a party’s duty to preserve generally is triggered when the party knows or reasonably should know that the information is relevant to actual or reasonably anticipated litigation.¹⁵

Once a party’s duty to preserve is triggered, however, the adequacy of that party’s preservation efforts is a fact-based inquiry and is controlled in large part by the applicable rules of civil procedure. Under FRCP 37(e), sanctions for failure to preserve relevant evidence cannot be issued when a party has taken “reasonable steps” to preserve the data.¹⁶ The question then becomes, what are considered reasonable steps?

First, as a practice standard, advise your clients of their preservation obligations in writing at the outset of a case, and document any efforts made to gather information.¹⁷ Next, determine what sources of social media are within your client’s possession, custody, or control and consider which of these sources contain information relevant to the litigation. Finally, to the extent possible, preserve it.¹⁸

Determine what sources of social media are within your client’s possession or control, then—to the extent possible—preserve it.

Generally, social media users have some degree of possession, custody, or control over their data on apps. A user can control what content they make available and when, delete content, and specify who can view the content, among other things. Having the ability to control many aspects of the content, however, does not necessarily mean that the user can collect and preserve this data. For instance, ephemeral messaging apps do not allow users to retrieve all data that has either been sent or received. By its nature, such data disappears and is not generally accessible by the user.

Users should collect and preserve data once litigation is reasonably anticipated, but the means of doing so varies among apps and there are no clear rules on how to complete this process. While self-collection is possible in certain situations—such as downloading data in its original format or capturing static images (screenshots of posted photos)—some circumstances require third-party intervention, such as by a forensic examiner. This is particularly true when large amounts of data are available, the original data is interactive, a certain format is requested,¹⁹ or it is necessary to preserve the metadata of the document.

The constant evolution of social media makes it challenging content to navigate through discovery. Stay up to date on changing technological and legal developments, and focus on the relevance and burden analysis that will govern what and when social media content is discoverable.

Jessica Breuer is a shareholder at Burg Simpson Eldredge Hersh & Jardine in Englewood, Colo., and can be reached at jbreuer@burgsimpson.com.

Notes

1. This article only discusses how to obtain social media information directly from a party. Obtaining it from the social media company would implicate the Federal Stored Communications Act (18 U.S.C. §§2701–2712).
2. See Fed. R. Civ. P. 26(b)(1) (2015).
3. See Heidi L. Wickstrom, Know the Networks, Trial, Dec. 2019, at 20.
4. Farley v. Callais & Sons LLC, 2015 WL 4730729, at *4 (E.D. La. Aug. 10, 2015) (limiting a request for “all Facebook activity” to posts that refer or relate to the incident from the date of the incident to the present); Ogden v. All-State Career Sch., 299 F.R.D. 446, 450 (W.D. Pa. 2014) (“Ordering [Defendant] to permit access to or produce complete copies of his social networking accounts would permit [Plaintiff] to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable.”); Caraballo v. City of New York, 2011 WL 972547, at *5 (N.Y. Sup. Ct. 2011) (slip op.) (“digital fishing expeditions are no less objectionable than their analog antecedents”).
5. See  Brown v. City of Ferguson, 2017 WL 386544, at *2 (E.D. Mo. Jan. 27, 2017) (finding that disclosure of social media passwords would constitute unfettered access to those accounts); Farley, 2015 WL 4730729, at *8 (rejecting motion to compel login information, passwords, and real-time monitoring of Facebook account); Johnson v. PPI Tech. Servs., L.P., 2013 WL 4508128, at *2 (E.D. La. Aug. 22, 2013) (requiring a threshold showing to avoid “unfettered access” to the opposing party’s social media).
6. Ogden, 299 F.R.D. at 450.
7. See Fed. R. Civ. P. 26(g)(1)(B); see also Model R. Prof’l Conduct 3.4(d) (“A lawyer shall not . . . in pretrial procedure, make a frivolous discovery request”).
8. Chauvin v. State Farm Mut. Auto. Ins. Co., 2011 WL 13217836 at *2 (E.D. Mich. June 21, 2011); def. obj. overruled in Chauvin v. State Farm Mut. Auto. Ins. Co., No. 2:10-CV-11735 (E.D. Mich. Oct. 20, 2011) (awarding sanctions against a party that filed a motion to compel a Facebook password because the court found it to be “intrusive”).
9. Chauvin, 2011 WL 13217836, at *1.
10. Id. at *2.
11. Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (“Social media content is neither privileged nor protected by any right of privacy.”).
12. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 389 (E.D. Mich. 2012) (denying the defendants’ request for the plaintiff to sign authorizations to access her Facebook account when there was no threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011) (“Just as the Court would not give defendant the ability to come into plaintiff’s home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant.”).
13. See, e.g., Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167, at *3 (S.D.N.Y. Apr. 5, 2012) (ordering unrestricted production after court reviewed excerpts of electronic communications and concluded that “most, if not all, of them contain information that is relevant”); Bass ex rel. Bass v. Miss Porter’s Sch., 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009) (ordering production of all Facebook materials following in camera inspection because “a number of [withheld] communications . . . are clearly relevant to this action”).
14. EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 436 (S.D. Ind. 2010) (“Lawyers are frequently called upon to make judgment calls—in good faith and consistent with their obligations as officers of the court—about what information is responsive to another party’s discovery requests. Discovery is intended to be a self-regulating process that depends on the reasonableness and cooperation of counsel.”).
15. See The Sedona Conference, The Sedona Conference Commentary on Legal Holds: The Trigger and The Process, 11 Sedona Conf. J. 266, 267 (2010). Pinpointing the exact timing of this obligation is often difficult and subject to multiple factors depending on the applicable jurisdiction. This article does not address this specific topic but rather discusses the party’s obligations to preserve social media data once the duty is triggered.
16. See also e.g., Ariz. R. Civ. P. 37(g)(2)(2021); Haw. R. Civ. P. 37(f)(2015) (only allowing sanctions in exceptional circumstances when information is lost as a result of the routine, good-faith operation of an electronic information system).
17. See Edward (Ned) Mulligan V, Shielding Social Media Attacks, Trial, May 2022, at 18.
18. See Fed. R. Civ. P. 37(e), advisory comm. note to 2015 Am. (“It is important that counsel become familiar with their clients’ information systems and digital data—including social media—to address these issues. A party urging that preservation requests are disproportionate may need to provide specifics about these matters in order to enable meaningful discussion of the appropriate preservation regime.”) (emphasis added).
19. See Fed. R. Civ. P. 34(b)(2)(E)(ii)(2015) (“If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”).