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September 15, 2012
Social Media Discovery Roundup
[Post by Venkat Balasubramani]
* Douglas v. Riverwalk Grill, LLC, 11-15230 (E.D. Mich.; Aug 24, 2012)
* Mailhoit v. Home Depot USA, Inc., 11-03892 DOC (SSx) (C.D. Cal.; Sept. 7, 2012)
* Robinson v. Jones Lang Lasalle Americas, Inc., 12 cv 00127 PK (D. Or.; Aug 29, 2012)
A few recent cases have addressed social media and discovery, an issue courts and litigants continue to struggle with. I don’t see any clear pattern, apart from the fact that no one seems to have a good solution to a key logistical issue: how a party requesting discovery narrowly describes what is sought without knowing in advance what is contained in a social media profile. (For good context on the dispute check out Bruce Boyden’s post: The Proper Procedure for Facebook Discovery, Part I, as well as our numerous posts on the topic. (It's worth mentioning that ethical issues arise when counsel or those acting on counsel's behalf friend witnesses in the course of trying to obtain information. See this recent article for an example: "Hostile use of 'friend' request puts lawyers in ethical trouble.")
In camera inspection: One possible scenario is to have the court conduct an in-camera inspection of the litigant’s social media profile in order to determine what’s relevant. This isn’t ideal since someone ends up “rummaging around” in the party’s social media profiles (it’s not the party seeking discovery, but the witness/responding party’s information is still exposed to someone and there’s a resulting loss of privacy). The court took this approach in Douglas v. Riverwalk Grill, LLC [pdf], a discrimination case. After reviewing over 250 pages of discovery and “thousands of entries,” the court says that the majority of entries bore “absolutely no relevance to [the] case.” The court grants a request to turn over 18 entries. The court didn’t reproduce the entries in the order granting discovery, so it’s hard to tell the nature of the entries, but the whole thing seemed like a wasteful exercise. The court doesn’t specify who bears the costs of production and in-camera review, but the order left me wondering whether this should be a part of the discovery calculus.
Any posts that reveal emotion: Given that courts frown fishing expeditions and rummaging around in a party’s social media profile, one set of defense lawyers (in Mailhoit v. Home Depot USA, Inc.) sought to narrow their request for plaintiff’s social networking information. They sought the following information:
Any profiles, postings or messages . . . from October 2005 . . . through the present that reveal, refer, or relate to any emotion, feeling, or mental state of plaintiff, as well as communications by or from plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.
They also sought a second category of information (any communications that place the above messages in context), as well as a third category, which consisted of any photos posted or in which plaintiff was tagged.
The court (like all other courts to have addressed the issue) notes that social networking evidence may be relevant and is not off-limits by virtue of some magical privilege or zone of privacy. However, the court says that the requests to disclose this information must describe the information sought with “reasonable particularity.” The court says the requests fail this standard:
[e]ven if the first part of this category, which seeks communications relating to ‘any emotion’ could be understood to encompass only communications containing specific emotive words . . . the category would still arguably require the production of many materials or doubtful relevants, such as posting with a statement “I hate it when my cable goes out” . . . . Arguably, watching a football game or a movie on television is an “event” that may produce some sort of “significant emotion,” but it is unclear whether plaintiff would be required to produce messages relating to such activities.
Narrowing the discovery requests: A third case (Robinson v. Jones Lang Lasalle Americas, Inc.) also involved claims for discrimination, and the defendant sought: (1) communications with former co-workers; and (2) all social media content that “reveals or relates to [plaintiff's] ‘emotion, feeling, or mental state,’ to events that could be reasonably expected to produce a significant emotion, feeling or mental state, or to allegations in [the] complaint." [If you ever wonder why civil discovery is such a joy, the phrasing of this discovery request provides good insight into the process.]
The court says that where the plaintiff alleges beyond the “garden variety” emotional distress, social media evidence may become relevant. Social media often provides a window into the mental state of the person and can reveal information that is inconsistent with positions they take in a lawsuit. (See Eric’s numerous posts cataloguing examples.) The plaintiff agreed to produce any discussions with ex-co-workers and also any social media updates or content that “reference her allegedly discriminatory supervisor or ‘work-related emotions’.” The court says this is not enough, and orders plaintiff to produce any posts that:
Reveal, refer, or relate to (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or (b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.
All of these approaches have their drawbacks. The in-camera approach employed by the court in Riverwalk Grill is intrusive and needlessly expensive. The language in the discovery requests from the Home Depot and Robinson cases make my head hurt, and surely don't give much by way of guidance to the litigants or those involved in the discovery process. I'm inclined to stick with my original instinct and say that this should be treated similar to documents that arguably fall under attorney-client privilege. A party should be required to produce some sort of index that lists the entries in summary form. Using this index the parties can then fight out what is and what is not relevant.
[image credit: Kzenon/Shutterstock]
"Court Orders Production of Five Years' Worth of Facebook and MySpace Posts – Thompson v. Autoliv"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."