A party files a request for production pursuant to Rule 34 seeking any profiles, messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites that reveal, refer or relate to any emotion, feeling, or mental state of plaintiff as well as communications by the plaintiff that may reveal or relate to events that could be expected to produce a significant emotion, feeling or mental state.
Essentially, the opposing counsel wants your social media activity. Potentially all of it. A party’s first thought might be that is private! I don’t want anyone to see it. However, depending on the claims advanced by a party this information may be discoverable and potential damaging and/or embarrassing posts may be ordered produced.
The production of social media posts, such as Facebook wall posts, are governed by the same relevance standard as any other discovery requests. While this issue is relatively new, cases and discovery orders on motions to compel are starting to become more prevalent. For instance, on Sept 7, 2012 a U.S. District Court granted a motion to compel social media posts from a plaintiff who claimed she was discriminated against by Home Depot. See Mailhoit v. Home Depot U.S.A., 2012 WL 3939063 (C.D. Cal. Sept 7, 2012).
The plaintiff had testified at her deposition that as a result of the defendant’s actions, plaintiff suffered from depression. Defendant then sought to discover social media posts such as pictures on Facebook that would undermine the plaintiff’s claims of isolation and loss of friendship.
In examining the defendant’s discovery requests, the court noted that social networking posts are neither privileged nor protected by any right of privacy. However, the court acknowledged FRCP 34 does not allow a requesting party “a generalized right to rummage at will” through a party’s Facebook posts, but rather requires a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.
Therefore, the court held that a request for any profiles, postings or messages that reveal or relate to plaintiff’s emotional or mental state was too broad and failed to put a reasonable person of ordinary intelligence on notice of which specified documents or information would be responsive to the request.
However, the court did order the plaintiff to produce all social networking posts which in any way refer to her employment at Home Depot. Other courts have applied a similar rationale. For instance, another U.S. District Court denied a discovery request in a slip and fall case seeking production of the plaintiff’s entire Facebook account. Tompkins v. Detroit Metro Airport, 278 F.R.D. 387 (E.D. Mich. 2012).
The defendant attached to their motion to compel pictures that were publically available on the plaintiff’s Facebook wall as well as private surveillance photos which showed her standing at a party and holding a small dog. The defendant argued these posts showed the relevance of the private posts which the defendant could not view. The court disagreed and stated that holding a small dog was not inconsistent with plaintiff’s claim of injury and therefore the defendant did not have a strong enough argument to obtain discovery of the plaintiff’s entire Facebook account. The court noted that if the pictures had showed her playing golf or riding a horse the defendant’s argument would have been stronger.
What is clear is that Facebook posts can be discoverable and that courts will utilize traditional principles of relevance to determine whether social media account information must be produced. While case law is still developing on this issue, counsel would be advised to limit their requests for social media posts to those that are relevant to the case as opposed to seeking a party’s entire Facebook account.