In analyzing motions to compel production of social media content, courts generally agree that there is no justification to treat this evidence differently from any other form of electronically stored information. Despite this seeming consensus, the standards of relevance vary among jurisdictions. One admissibility standard seems to be emerging, however: when a party’s public social media information seems to undermine the party’s allegations, the courts will allow the discovery. See, e.g., Keller v. Nat’l Farmers Union Property & Casualty Co., (D. Mont. Jan. 2, 2013).
But even when deemed potentially relevant, social media evidence is still not freely discoverable in many jurisdictions due to privacy considerations. To prevent parties from engaging in fishing expeditions, some courts have asked the producing party to gather the evidence from the social media account and provide it to the receiving party directly. However, this raises the concern that a party may not produce the full panoply of responsive information as well as the specter of spoliation.
Therefore, courts are exploring diverse approaches that balance a party’s right to privacy with the opposing party’s right to discovery. For example, one court ordered a plaintiff to share her Facebook login information with the defendant but limited the defendant’s access to the account to 21 days. Largent v. Reed (Pa. Ct. C.P. Nov. 8, 2011). Other courts have entered a protective order to prevent the dissemination of social media content outside the confines of the matter. See, e.g., EEOC v. Simply Storage (S.D. Ind. 2010).
To prevent fishing expeditions and safeguard privacy, some courts have appointed neutral experts to supervise the collection of social media evidence. For instance, after granting a broad request for social media account usernames and passwords, one court appointed a special master to review the evidence in camera for relevancy. EEOC v. Original Honeybaked Ham Co. of Georgia (D. Colo. Nov. 7, 2012). Before producing the relevant evidence to the defendant, the court allowed the EEOC to review the information for privilege. The court split the cost of the forensic examination between the parties, with the possibility of relieving the plaintiffs of monetary responsibility if the effort produced little or no relevant information. Although this method achieves the twin goals of ensuring objectivity and preserving privacy, it is not without its drawbacks: it is time-consuming and increases the costs of discovery.
Regardless of the approach, one thing is abundantly clear: parties cannot hide behind the shield of privacy when it comes to discovery of their social media content. Therefore, counsel should speak to their clients early and often throughout a matter to confirm what social media evidence exists and remind clients to preserve this evidence for the duration of the litigation. Counsel should also consult with collection experts on the best way to acquire and produce any relevant information from social media accounts. Moreover, well before any litigation or investigations are on the horizon, counsel should encourage corporations to incorporate social media into their e-discovery strategy and information management programs (see CMS’ What You Need to Know About Incorporating Social Media Into Your E-Discovery Strategy) to ensure that they do not retain more information than is necessary for business or compliance purposes.
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