Social Media Discovery and Rule 26

Seventy-two percent of the American public uses social media, according to a 2021 Social Media Fact Sheet by the Pew Research Center. This includes platforms such as: Facebook, Snapchat, Nextdoor, Pinterest, YouTube, Instagram, WhatsApp, LinkedIn, Reddit, Twitter, and TikTok.

Increasingly, litigation discovery includes attempts to access the parties’ social media accounts, especially in cases involving claims of physical or emotional injury. For instance, in a lawsuit over allegedly permanent physical injuries incurred in a car accident, the auto insurer might want to search the plaintiff’s Facebook account for pictures of the plaintiff dancing, waterskiing, or engaging in other activities that bely her injury claims. See, e.g., Vega v. GEICO Gen. Ins., No. 8:21-cv-1450-MSS-AAS (M.D. Fla. Apr. 11, 2022).

When it comes to social media, the litigation discovery rules are similar to the rules for discovering any other type of information. That is, there is no generalized right to “rummage at will” or engage in “fishing expeditions” in each other’s social media accounts hoping to find relevant evidence.

Social media content is generally not privileged or protected by any special privacy rights, regardless of the privacy settings an individual account owner may have selected on her social media account. On the other hand, as with all discovery requests, the party seeking access must make a threshold showing that the requested information is “relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. Rule 26(b)(1).

More and more, courts agree that the proportionality requirement, which was added to Rule 26 in 2015, implicates privacy in discovery generally. Additionally, states with explicit privacy guarantees in their constitutions, such as Arizona, California, Florida, Illinois, and Washington, may afford more protection in their courts from overly invasive discovery. Privacy and proportionality considerations may narrow the permissible scope of social media discovery in particular since social media content often includes intimate personal details unrelated to a litigant’s claims. Thus, courts are often reluctant to compel all-encompassing requests for access to a party’s social media accounts. Rather, the focus is “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

For instance in a recent case where the parents of a disabled child accused a school employee of abusing their child in October and November 2019, the defendant school board sought discovery of all of the parents’ social media account data starting on January 1, 2019, and “including, but not limited to, color copies of all photographs, videos, applications, postings, wall postings and comments, messages, friend lists, comments, tweets, etc.” Doe v. Cabell Cnty. Bd. of Educ., No. 3:21-cv-00031 (S.D.W. Va. Jan. 31, 2022). The defendants’ theory was that they were entitled to information that could relate to the plaintiff’s alleged injuries as well as other stressors in the plaintiff’s life, given that the plaintiff had claimed damages for severe emotional distress and bodily harm. However, the court noted that Fed. R. Civ. P. 34(b)(1) requires requests for production to be drafted with “reasonable particularity.” Thus, the court narrowed the required discovery to data from the child’s mother’s Facebook and Instagram accounts “which references or depicts [her son], or relates to claims, defenses, and damages alleged in this case for the period of January 1, 2019 to the present.”

Some courts require a threshold showing that publicly-available social media content is relevant to the case before agreeing to order discovery of non-publicly available content. But others reject this approach, pointing out that such a rule would completely shield the social media user who is savvy enough to keep all of their posts and profiles private. See Gaske v. Crabcake Factory Seafood House, LLC, No. 1:18-cv-02630-JMC (D. Md. July 28, 2021) (an employment case where plaintiffs sought social media evidence to establish an individual defendant’s ownership interest in a corporate defendant employer).

Courts may also limit social media discovery for “garden variety emotional distress claims” but grant wider access for claims of “severe emotional distress, including post-traumatic stress disorder.” Id. This raises important issues of reliability and probative value in social media, however. For instance, a person posting on social media may have a tendency to “curate” a certain image of themselves “that might understate or overstate one’s true emotional state.” Allen v. PPE Casino Resorts Md., LLC, 543 F. Supp. 3d 91, 95 (D. Md. 2021); see also Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 115-16 (E.D.N.Y. 2013) (“The fact that an individual may express some degree of joy, happiness or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.”).

In a recent employment discrimination case by a car salesperson for emotional distress and punitive damages, the court ordered the plaintiff “to provide her social media posts related to the workplace during her period of employment (2011-2017) . . . and for six months following her termination, to the extent the posts concern the impact of her employment at the defendant dealership had on her mental or physical well-being.” Lopez v. Bendell, No. 2022-30322, (N.Y. Sup. Ct. Jan. 31, 2022). After the plaintiff initially responded that she did not have any responsive social media posts, the court required her to produce an affidavit stating the nature, extent, and methods of her social media search. Thereafter, the plaintiff searched her Facebook and Instagram accounts again and produced nine posts which she deemed responsive to the discovery request. The defendant then tried to convince the court to order in camera inspection of all of the plaintiff’s social media accounts. Instead, however, the court ordered the plaintiff’s attorney to independently search the plaintiff’s social media accounts and to submit a “Jackson Affidavit” confirming the search and its results.

As this brief discussion shows, social media content presents unique challenges for discovery. Even material that is posted on a private Facebook page is not privileged or entitled to special protection in discovery. Nevertheless, requests for social media content must be carefully tailored to meet the proportionality requirement of Rule 26.

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