Attorneys still can use traditional discovery methods to access opposing parties’ social media information. A user who places information on a social network, but who also implements the service’s privacy settings, does not shield the information from discovery or otherwise place it outside of the court’s reach. However, most courts have not granted unfettered discovery of a party’s social media account. The District of Minnesota in Holter v. Wells Fargo and Co. summed up the majority rule:
This court would not allow depositions of every friend and acquaintance to inquire about every conversation and interaction with plaintiff. So too, the court will not require plaintiff to produce all information from all her social media websites to obtain similar information.
Courts can require parties to produce the information, so long as the new request is targeted; it cannot be a fishing expedition. In Holter, the court concluded that the defendant was entitled to information from the plaintiff’s social media pages that bore on her mental disability and emotional state. The plaintiff’s counsel was required to review her social media pages and “produce any content or communications that reveals or refers to . . . any emotion, feeling or mental state, including but not limited to any reference of depression, anxiety, or mental disability.”
Most courts require a factual predicate showing the relevance of what is being sought and showing that additional relevant information is hidden behind the privacy settings. By extension, the requesting party does not have “a generalized right to rummage at will through information that [the responding party] has limited from public view but instead require a threshold showing that the requested information is reasonably calculated to lead to the discovery of relevant evidence.” For example, the Eastern District of Minnesota held that a plaintiff did not have to provide the “defendant with any passwords or user names to any social websites, so that defendant can conduct its own search and review.”
But the privacy protections that the case law provides function only if you object to overly broad discovery requests. In one Louisiana personal injury case, the defendant propounded interrogatories asking for virtually unimpeded access to the plaintiff’s social media accounts. Initially, the plaintiff objected but withdrew the objection and agreed to produce the information in the face of a motion to compel. The defendant asked the plaintiff to produce a complete copy of the Facebook archive, a file that contains a record of the user’s activity, including all wall posts, pictures added or tagged in, and private messages with other users. After agreeing to produce the entire archive, certain technical difficulties prohibited the plaintiff from doing so. The court granted the defendant’s motion to compel and ordered the plaintiff to produce the information in seven days.
The Facebook archive also can help you protect yourself from potential exposure to discovery sanctions. At the outset of litigation, download the archive to avoid any issues if you are subsequently faced with a spoliation motion for failing to produce the information.