But two recent decisions with different results offer some clues on how to narrowly focus a discovery request to pass muster.
In September, a U.S. District Court judge in California denied a request seeking information from an employment discrimination plaintiff’s Facebook account – including photos, status updates and wall comments – as overbroad.
But just a few months earlier, a federal court judge in Nevada granted a similar motion in a personal injury suit.
The two cases serve as a reminder that the Federal Rules of Evidence apply with equal force to social media evidence, said Josh Gilliland, an e-discovery practitioner in San Jose, Calif., and author of the Bow Tie Law’s blog on e-discovery.
Lawyers often get tripped up when facing new forms of technology and assume that new media means new evidentiary rules, Gilliland said.
The lesson from the two decisions is that “the game hasn’t changed,” he said. “Discovery requests are the same as they have always been” and lawyers should frame their requests for Facebook posts just like they would for email or written documents.
One court says yes, another says no
Danielle Mailhoit filed an employment discrimination suit against her former employer, Home Depot, in federal court in California. She alleged that she suffered emotional distress as a result of the discrimination.
Home Depot requested an order from the court compelling Mailhoit to produce four categories of documents:
1) “Any profiles postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the approximate date [the] plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of [the] plaintiff, as well as communications by or from [the] plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state;
2) Third-party communications to [the] plaintiff that place her own communications in context;
3) All social networking communications between [the] plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit; and
4) Any pictures of [the] plaintiff taken during the relevant time period and posted on [the] plaintiff’s profile, or tagged or otherwise linked to her profile.”
Denying the majority of the request, U.S. District Court Judge Suzanne H. Segal said that Home Depot had failed to adequately tailor categories one, two and four pursuant to Federal Rule of Evidence 34(b)(1)(A)’s requirement of “reasonable particularity.”
The first category seeks communications relating to “any emotion” that could “arguably require the production of many materials of doubtful relevance, such as a posting with the statement, ‘I hate it when my cable goes out,’” she wrote.
However, the court allowed the third category requested, which it said was “reasonably calculated to lead to the discovery of admissible evidence.”
In the Nevada case, Nicole Thompson and her parents alleged that she suffered “massive, life-threatening, permanent and irreversible injuries” because of a defective seatbelt that spooled out during a car crash and improper airbag deployment.
The airbag defendant requested “complete and un-redacted copies of [the] plaintiff’s Facebook and other social networking site accounts,” including wall posts, photographs and messages from April 27, 2007 to the present.
The request came after the defendant obtained wall posts and photographs from the plaintiff’s public Facebook profile, which it said belied her claims of serious injury and depressed mental state. The profile included depictions of the plaintiff’s ability to dance, evidence of social activities including late-night partying and consumption of alcohol and offers by the plaintiff to share medications with others.
Despite the plaintiff’s argument that the request was a fishing expedition, U.S. Magistrate Judge Cam Ferenbach said the content of the Facebook account was relevant to the suit.
“Because the alleged consequences of [the] plaintiff’s injuries include severe physical injuries, emotional distress and impaired quality of life, evidence relating to plaintiff’s physical capabilities and social activities is relevant to plaintiff’s claims in this action. The material obtained by defendants from plaintiff’s public Facebook account negates plaintiff’s allegations that material on her social networking site accounts is irrelevant to any party’s claims and defenses,” the court said.
Narrowing discovery requests
The broad requests seen in both cases are typical in cases involving social media evidence, Gilliland said.
Because social media evidence is new to many, lawyers fail to recognize the application of the federal rules and their requests therefore often amount to fishing expeditions, he added.
For lawyers, the lesson from the Mailhoit case is to “think [about] how to narrow the request,” Gilliland said.
“Narrow down the time frame, narrow down the individuals [the plaintiff] is interacting with and narrow down the subject matter,” he said.
In a personal injury suit, instead of asking for “any pictures” during the relevant time period, a defendant could ask for “all pictures of the plaintiff exercising,” recommended Michael Fluhr, who practices product liability defense at Carroll, Burdick & McDonough in San Francisco and counsels his clients on electronic discovery.
A shorter period of time would have served Home Depot better than the company’s request for seven years’ worth of Facebook postings, said Stephen D. Riden, a commercial litigator and partner at Beck Reed Riden in Boston.
Focusing on specific people will also give a request a much greater chance of being accepted, Riden said. He cited Home Depot’s third category as an example, where the company requested “social networking communications” between the plaintiff and Home Depot employees.
Attorneys should also consider the appropriate “unit of analysis,” said Fluhr.
For example, files, folders and emails could all be considered separate units. But on Facebook, requesting pictures may not result in obtaining the comments on the pictures or the tags identifying the other individuals.
These separate data elements may be relevant, Fluhr said, and attorneys should be sure to include them in a request.
Thompson illustrates the importance of conducting a thorough client interview early in the case, Gilliland said.
Riden said he sits down with his clients and has them go through their Facebook accounts in his presence.
“There might be evidence critical to the case and you need to know what the other side might be able to discover,” he said.
Although the Thompson defendant made a broad request, Gilliland said the company was not going on a fishing expedition in that case.
He said the defendant did the right thing and checked the plaintiff’s public Facebook profile, which “changed the relevancy game from, ‘Tell us everything you’ve ever felt over the last eight years of your life’ to ‘Something happened but now we have evidence you weren’t completely honest and we need more information.’”
The Thompson request was broad “but the defendant had a reason for it,” Gilliland emphasized, whereas Home Depot in the Mailhoit case was asking for “a bunch of unknowns.”
Instead of starting off by asking for the entire Facebook account – a la Home Depot – the Thompson defendant did some research and was able to produce some relevant evidence for the court.
“By being able to present to the judge the tip of the iceberg, the court will be more willing to allow further exploration of the entire iceberg,” Riden said.