How Lawyers Get Their Hands on “Private” Facebook Posts

This article is excerpted from the upcoming e-treatise, Wassom on Social Media Law.

It happens every day.  First, someone gets sued (or starts a lawsuit).  Then the “discovery” process of gathering information starts.  Today, one of the first places lawyers look in many types of litigation is their opponent’s Facebook page.  But that page is shielded from public view by its privacy settings.  Its owner refuses to comply.  Motions are filed.

Who wins?  It depends.

Discovery Rules Are Permissive By Default

Generally speaking, parties can “discover” (that is, force the other side or a third party to disclose) any documents or information that are relevant to any claim or defense in the lawsuit. And it doesn’t have to be admissible in court to be “relevant”; it only needs to be “reasonably calculated” to lead to the discovery of admissible evidence.

But there are safeguards. If discovery requests are too burdensome, the party receiving the request can seek the court’s protection. The court then performs a balancing test, weighing the value of the information to the requestor against the burden on the requestee. If the requesting party can’t give a valid explanation of why the information it seeks is “reasonably calculated to lead to the discovery of relevant evidence,” courts often call the request a “fishing expedition.” In other words, the requestor didn’t have a good reason to believe that the requested documents are relevant to the case; they simply threw the request out there like a fishing line, hoping to catch a lucky break.

Several courts have expressly followed the conclusion of Magistrate Judge R. Steven Whalen of the Eastern District of Michigan in the 2012 decision Tompkins v. Detroit Metropolitan Airport that “consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”

Proving That “Private” Social Media Content is Relevant

This creates a dilemma for the party seeking the discovery.  How can they demonstrate that the content is relevant (and therefore discoverable) without knowing what’s there?

There are at least a couple approaches.

          1. Leveraging Public Portions of a Social Media Account 

Many, if not most, of the cases in which an order compelling social media evidence has been sought involve allegations of physical or emotional injury.  When a plaintiff alleges that she has been injured, she puts her well-being at issue, and evidence suggesting either that her alleged injuries are not genuine, or that they were caused by something else, becomes relevant.  Social media is a natural outlet for sharing information about one’s personal condition (via text, photos, and videos), so it has become a natural target for discovery by defendants defending against injury claims.

In several cases in which discovery was ordered, defendants found information in the public portions of a plaintiff’s Facebook page that tended to contradict the plaintiff’s claims.  This was enough to suggest that the private portions of the accounts might also contain such information, thus making them discoverable.  For example, in Richards v. Hertz Corp(N.Y. App. Div., 2d Dept. 2012), the “portions of [the plaintiff’s] Facebook profile that were not blocked by privacy settings … [contained] photographs, dated [after the alleged injury], depicting [plaintiff] on skis in the snow.”  That was enough to make “all status reports, e-mails, photographs, and videos posted on [plaintiff’s] Facebook profile since the date of the subject accident” potentially discoverable (although the court intervened to review the materials first, as discussed below).

Similarly, in Zimmerman v. Weis Markets (Penn. Comm. Pleas 2011), plaintiff alleged that scarring from a forklift accident had deprived him of the ability to enjoy life and that he always hid his leg out of embarrassment.  Yet the public portions of plaintiff’s MySpace page contained pictures of him wearing shorts and performing motorcycle stunts, including one that caused him more recent injuries.  Following the example of the New York Romano case cited above, the court found “a reasonable likelihood of additional relevant and material information on the non-public portions of [plaintiff’s Facebook and MySpace accounts].”

This leveraging of public social media information to obtain private content demonstrates why attorneys should investigate their opponents’ accounts as soon as possible, before the opponent changes their privacy settings.  In Thompson v. Autoliv ASP, Inc. (D. Nev. 2012), the defendant gathered photos and other content from the plaintiff’s Facebook page relevant to ten separate issues in the case, including her ability to play sports, care for her children, her social activities, and sleep habits.  But just over a year into the litigation, plaintiff changed the settings on her account to make it private.  Defendant then brought a motion to compel discovery of the entire account–citing the information it had already gathered–and prevailed.

The quantum of evidence required to satisfy this threshold showing is not high.  But courts have disagreed as to just how low it is.  Two court opinions from 2012 involving allegations of plaintiff’s “loss of enjoyment of life” illustrate this disagreement.  In Walter v. Walch, a trial court in Suffolk County, New York found “a single [profile] photograph of [plaintiff] smiling” enough to justify discovery of plaintiff’s entire Facebook account where the issue was plaintiff’s “loss of enjoyment of life.”  But in the Tompkins case, defendants found “photographs showing the Plaintiff holding a very small dog and smiling, and standing with two other people at a birthday party in Florida.”  Magistrate Judge Whalen did not find these photos inconsistent with plaintiff’s alleged injuries.  “If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account.”  But these photos were not enough, and the magistrate judge refused to order the discovery.

          2.  Narrowly Tailored Discovery Requests

Even if a party has no direct evidence that the private portions of a social media account are relevant, the party may still serve discovery requests that are specifically tailored to issues that are relevant in the case.  This will place the burden on the producing party to comply with the request, or at least to explain why the request is objectionable.

Federal Rule of Civil Procedure 34(b)(1)(A) requires that requests for production “describe with reasonable particularity each item or category of items to be inspected.”  In Mailhot v. Home Depot USA, Inc. (C.D. Cal. 2012), the Court denied as not “reasonably particular three categories of requests (including requests “that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff,” for “third-party communications to Plaintiff that place her own communications in context,” and “any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile,”) but compelled compliance with requests seeking all social media communications “between Plaintiff and any current or former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit,” because “a search for the[se] communications … is both technically feasible and not overly burdensome.”

Limited Only By Imagination

To date, these are the methods of proving relevance that have been recited in most social media-related case law.  But there are others.  Taking deposition testimony of the account holder or their friends, for example, may lead to helpful admissions about what’s in the account.  The particular circumstances of a case may offer additional methods.  But one thing is for sure: the lawyers will keep asking for this information.