So far, 2013 has been anticlimactic for litigators waiting for an authoritative appellate decision addressing the rules of social media discovery. Although state and federal trial courts have established some basic parameters regarding the accessibility of private social content in litigation, there remains a conspicuous lack of appellate court guidance on the matter. There’s no telling if this will change any time soon, but a recent federal district court decision sets out a well-founded approach that should serve as a model for future appellate court decisions. Instead of concrete rules concerning general availability of social media content, courts should take a more fact-sensitive, nuanced approach that imposes multistep relevancy requirements. Although this approach will likely result in an increasing number of discovery disputes, it is both more fair to the parties and more consistent with the rules of evidence.

With respect to the general availability of private social media content (mostly Facebook), the emerging trend from trial courts is that a party requesting private content must show that a litigant’s public profile contains information relevant to the dispute. So, for example, if a litigant in a personal injury case claims he can no longer walk, a picture posted on his public profile showing him on a recent hiking trip would clearly be relevant to an important issue in his case. If the requesting party can make this sort of threshold showing of relevance, most courts have permitted access to private content. Although this approach has the benefit of creating a bright line test, it fails to address a bigger issue: once a party makes a threshold showing of relevant public profile content, should there be restrictions on their right to access private content? In other words, should a requesting party be granted unfettered access to an adverse party’s Facebook account? Or, in contrast, should access to private content, such as photographs and status updates, be limited based on relevance?

Unfortunately, too many courts have taken a carte blanche approach to Facebook discovery: once it is shown that a litigant’s public profile includes relevant material, all private content is fair game. Indeed, many have simply ordered the contesting party to turn over their log-in information to the other side. But this approach ignores ongoing questions of relevancy and is only tenuously connected to the principles of evidence law. Most content posted on an individual’s Facebook page will not be relevant to a case. This is particularly true with respect to content posted on a litigant’s Facebook page by third parties (i.e. “friends”). There is no justifiable reason under the rules of evidence why adverse parties should gain access to this irrelevant private information, especially considering it may be quite embarrassing or in some cases possibly even incriminating.

The more appropriate approach is to enforce a two-part, individualized relevancy test. The first step is the familiar threshold showing of relevant public content. The second step, in lieu of simply requiring a party to turn over his or her Facebook login information, should require the party requesting access to private information to itemize specific categories of content it considers relevant for production. For instance, the requesting party could ask an injured plaintiff to produce photographs of the plaintiff engaging in physical activity after the date of an alleged injury. These photos would include those posted by the plaintiff, or those posted by “friends” in which the plaintiff was tagged. In order to realistically implement this more tailored approach, attorneys would need to meet and confer in an attempt to hash out mutually agreeable parameters. But this is nothing new—most courts require litigants to make a good faith effort to resolve discovery disputes before resorting to motion practice.

Admittedly, this is not the clear-cut test some have hoped for with respect to Facebook discovery. But, what it lacks in bright lines and definitive answers, it makes up for in protecting litigants from unwarranted intrusions into their personal life. A recent decision from a New York district court shows how this two-step approach would play out during litigation. In Reid v. Ingerman Smith LLP, No. 2012-0307, 2012 U.S. Dist. LEXIS 182439 (E.D.N.Y. Dec. 27, 2012), a plaintiff sued Ingerman Smith LLP for physical and emotional damages as a result of alleged sexual harassment. The defendant requested access to the plaintiff’s private Facebook content, arguing that her public profile contained comments and photographs relevant to her mental and emotional condition. District Court Judge Marilyn D. Go agreed with the defendant, finding that the “photographs and comments that plaintiff posted on her publicly available Facebook pages provide probative evidence of her mental and emotional state, as well as reveal the extent of activities in which she engages.” Id. at *3-4.

After concluding that the defendant had met its threshold relevancy requirement, Judge Go reminded litigants that they have no expectation of privacy in their Facebook posts, even if they use privacy filters. Id. at *5. “In fact, the wider [a plaintiff’s] circle of ‘friends,’ the more likely her posts would be viewed by someone she never expected to see them.” Id. However, although there is no expectation of privacy in social media, Judge Go correctly determined that not all of plaintiff’s postings will be relevant to her claims and therefore refused to allow defendant unrestricted access to the plaintiff’s Facebook account. Instead, Judge Go identified specific categories of content that should be produced. First, Judge Go logically narrowed the time-frame of relevant postings and held that the plaintiff was not required to produce any content posted prior to the date of her injuries. Judge Go did conclude, however, that statements regarding plaintiff’s social activities that were posted after the date of her alleged injuries “may be relevant to plaintiff’s claims of emotional distress and loss of enjoyment of life.” Id. at *7. Therefore, plaintiff’s social media posts and photographs that refer or relate to “events that could be reasonably expected to produce a significant emotion, feeling or mental state” were discoverable. Id.

Significantly, Judge Go did make a distinction between photographs posted by plaintiffs and those posted by third-parties which merely refer to or “tag” plaintiffs. Although both types of posts may be discoverable, “a picture posted on a third party’s profile in which a claimant is merely ‘tagged’ is less likely to be relevant.” Id. at *8 (citations omitted). Similarly, “communications of third parties and plaintiff’s responses” are only relevant “to the extent that they contain third party observations of plaintiff.” Id. Judge Go ultimately tasked plaintiff’s counsel with the responsibility of reviewing all of plaintiff’s social media posts from the date of her injuries to determine which material should be turned over in accordance with her opinion. Id. at *8-9.

Judge Go’s decision in Reid should serve as a template for appellate courts in fashioning a workable framework for resolving Facebook discovery disputes. The current majority approach, requiring only a threshold showing of relevant public profile content, clearly ends the analysis too soon. Giving litigants unrestricted access to adverse parties’ Facebook accounts simply ignores the fundamental and commonsense requirement of relevance in discovery and is unnecessarily intrusive. Although requiring individualized showings of relevance for each category of requested Facebook content may be burdensome to both courts and lawyers, it is an approach more consistent with the rules of evidence and serves to more appropriately protect the privacy of litigants.

- James P. Goslee

 

James P. Goslee is an associate with the law firm of Cohen, Placitella & Roth, PC and focuses his practice on personal injury, medical malpractice, subrogation, commercial litigation, and securities law. He previously posted on the issue of social media discovery here. Cohen, Placitella & Roth is a litigation law firm with offices located in Philadelphia, Pennsylvania and Red Bank, New Jersey. The firm is nationally recognized, and its attorneys concentrate on complex litigation matters such as product liability, personal injury, wrongful death, defective products, environmental litigation, subrogation, securities fraud, and unfair and deceptive business acts.

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