Social Media: Is it Discoverable?

Many people routinely document their lives through interactions on social media forums such as Facebook, Twitter, LinkedIn, or some other social media site. With social media becoming more and more a part of our everyday lives, the content of social media has inevitably become valuable to litigation. While you may be shaking your head and agreeing with the relevancy of social media, when is the last time you included a social media request in your discovery requests? If you included this request, how specific was it? This blog post will explore the growing use of discovery requests to obtain vital information from social media.

Recently, in Nucci v. Target Corp., 40 Fla. L. Weekly D166 (Fla. 4th DCA Jan. 7, 2015), Florida’s Fourth District Court of Appeal permitted the discovery of photographs from social media accounts and stated that social networking sites can provide a “treasure trove” of information in litigation.   Defendant’s discovery requests were in the form of interrogatories and requests for production. The court compelled answers to the following interrogatories:

1. Identify all social/professional networking websites that Plaintiff is registered with currently (such as Facebook, MySpace, LinkedIn, Meetup.com, MyLife, etc.).
2. Please list the number and service carrier associated with each cellular telephone used by the Plaintiff and/or registered in the Plaintiff’s name (this includes all numbers registered to and/or used by the Plaintiff under a “family plan” or similar service) at the time of loss and currently.

Additionally, the court compelled the production of the following items:

1. For each social networking account listed in response to the interrogatories, please provide copies or screenshots of all photographs associated with that account during the two (2) years prior to the date of loss.
2. For each social networking account listed in the interrogatories, provide copies or screenshots of all photographs associated with that account from the date of loss to the present.

The plaintiff asserted objections of privacy, accessibility, and relevancy as to the interrogatories, and objected to the requests for production as overbroad, harassment, overly burdensome, and vague. None of the objections passed muster as the court found that there was no expectation of privacy in the photographs posted on a social networking site, regardless of the privacy settings on the account, because the creation of a social networking account acknowledges that personal information will be shared with other people. Even if the plaintiff used privacy settings that would only permit “friends” to see her posts, there was no justifiable expectation of privacy that her “friends” would keep the posts private.

The court in Nucci provided a framework for social media requests in requiring that such requests be narrowly tailored. To determine if a request is narrowly tailored, courts look to the limitation in time, content, and nature of the requests, which will be discussed in the context of the Nucci case in turn. First, the court noted that the requests were neither broad nor vague as the requests were limited in temporal scope to a specified time of two years before the loss and the time subsequent to the loss. See also Equal Employment Opportunity Commission v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (holding that the discovery requests for social media profiles for three years was narrowly tailored because the requests were limited in time and the time period was relevant to the claim).

Second, the requests met the narrowly tailored requirement because the requests were limited in the scope of content as to avoid unfettered access to the social networking accounts. Specifically, the court in Nucci points out that the requests were only for photographs and were not for passwords, which indicated that had the requests been for passwords, such information would not have been compelled. But see Beswick v. North Medical Center, 2011 WL 7005038 (Fla. 17th Cir. Ct. Nov. 3, 2011) (compelling the production of the usernames and passwords to the social media websites used by the plaintiff in the past five (5) years).

Finally, the requests were narrowly tailored because the nature of the information sought was photographs and not communications between the plaintiff and third parties. See also Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149, *8 (D. Nev. 2007) (denying a motion to compel the content of private Myspace message because such requests covered to broad of a spectrum of information and essentially constituted a fishing expedition.)

While courts disagree as to the extent of discoverable content of social media and the legal precedence in Florida is limited, most courts agree that social networking content “is neither privileged nor protected by any right of privacy.” See Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012). In cases where the cause of action depends on a depiction of the past with the current (like the allegation of a permanent injury or the damage to property) the discovery of social media content could be the difference in winning and losing the case as there is the chance that the only evidence of the alteration lies in pictures or posts on social media. With that being said, a best practice tip is to avoid trumping the line drawn between accessible information and private information and to adequately lay a factual foundation for the court to show the relevancy of the need for the social media content. This pointer relates back to the nature of the requests wherein a request of all messages sent via Facebook would be undiscoverable, but something as specific as photo posts may be discoverable.

Another best practice tip is to limit the scope of the request by time and content. Asking for a party’s entire Facebook profile without a limitation on time or content is not narrowly tailored. See Levine v. Culligan of Florida, Inc., 2013 WL 1100404 (Fla. 15th Cir. Ct. Jan. 29, 2013). However, requesting a picture posted on a social media site or pictures from a set range of dates is presumably narrowly tailored, so long as the relevancy for the requests is established. Just as any other discovery request cannot be overly-broad or unduly burdensome, the same rules apply to discovery requests for social media content. In sum, social media is officially present in every aspect of daily life and it’s time to incorporate social media discovery into the practice of law.