Conducting Facebook Discovery

An interesting issue arising in the courts is the intersection between social media and civil discovery. In the new world of social media where relevant information is placed on social networks like Facebook, what does this mean in conducting discovery and how narrow does discovery have to be construed This new area has caught increasing scrutiny from both legal bloggers (the new wave of legal information dispersal) and the courts .
Many legal bloggers have qualms with the broadness and expansiveness that would allow discovery over a person’s social media profile . For example, Bruce E. Boyden in his post “The Proper Procedure for Facebook Discovery, Part I,” worries that court orders to produce an individual’s entire social networking account arguably goes against how civil discovery is meant to be used. Boyden argues that civil discovery should not be used in a manner that gives the opposing party a blanket order to look at all Facebook or social media posts, but rather should be relevant to the issue for the request. Rule 26(b) which pertains to the scope of discovery states:

  • Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action…


The very language of Rule 26, seemingly gives broad scope to what is discoverable. Given the apparent broad scope of Rule 26, the question becomes what is the implication for employers.

Discovery of social media communications has seemingly been relevant to the courts when attempting to establish the mental state or emotions of an opposing party. This is particularly relevant for litigation involving employment issues, as individuals may post comments or photos that document their feelings or events in reference to their employment. In E.E.O.C. v. Simply Storage Management, LLC, the E.E.O.C. brought a Title VII claim against an employer for sexual discrimination. One of the issues presented was whether the claimants had to produce their social networking site (SNS) profiles and communications from their Facebook and MySpace accounts. E.E.O.C. argued that production of such material should be limited to matters related to the complaint. The court found that “it is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.” 270 F.R.D. at 435. The court determined that the “appropriate scope of relevance” included any profiles, postings, or messages, set within a defined time period that were further narrowed to “reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state,” was deemed appropriate. Id. at 436.
A parallel issue is whether or not the information is private. Given the inherent public nature of social media, even individuals who may attempt to privatize their account through privacy settings, may still find that they did not have a reasonable expectation of privacy to information that information that was voluntarily posted. Courts have struggled with this issue and have not ruled in the same manner. See Crispin v. Christina Audigier, Inc., 717 F.Supp.2d 965 (2010). In Crispin, the plaintiff filed an action against Audigier and his clothing brand, “Ed Hardy.” Crispin alleged that the two parties had an oral license to use the plaintiff’s art in a limited manner, which would require Audigier to pay a specified sum for the apparel that replicated Crispin’s artwork. Defendants served subpoenas duces tecum on four third-party businesses and social networking websites, to request information regarding all communications between the Plaintiff that related to the Defendants and the brand. The court found that webmail and private messaging “are inherently private such that stored messages are not readily accessible to the general public.” Id. at 991. However, with regards to privacy settings, the court remanded the issue to the lower court so parties could develop a more complete evidentiary record of the privacy settings. Therefore, no determination was made whether changing privacy settings are actually private.
It seems that courts are not on the same proverbial page when it comes to rulings involving social media discovery. Therefore, it is necessary to be diligent in keeping up to date on new cases that may affect how courts are deciding on this issue.

Discovery tips and tricks:
  • Perhaps the most obvious of sorts is to ensure that when you are seeking information through discovery to establish factual founding for why this information is being sought, i.e., what purpose does it serve?
  • Password access to social media accounts, although they have been granted by some courts, the majority of such requests will likely be frowned upon.
  • Factual determination whether access to social media content is cost effective and necessarily relevant for litigation.
  • Further narrow requests to a specific time frame that is relevant to the case.

E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (2010).
Crispin v. Christina Audigier, Inc., 717 F.Supp.2d 965 (2010