As we all know, social media is ubiquitous. Between Facebook, Instagram, Twitter, or any number of other social media sites, many people utilize at least one (if not more) social media platform. These individuals’ social media profiles frequently contain a wealth of information regarding a person’s characteristics, background information, or their social activities. More importantly, in the context of litigation, these profiles may contain valuable information regarding a person’s opinions, statements, or health condition. When a person’s social media profiles are set to be viewable by the public, attorneys may access this information for use in litigation. However, not all social media profiles are publicly available, often due to a user making their page(s) private. The question for attorneys and Courts alike becomes – to what extent, if any, should private social media information be discoverable for litigation purposes?
Matters are generally discoverable if they are non-privileged, relevant to a party’s claim or defense, and proportional to the needs of the case, taking into consideration the importance of the issues at stake in the matter, the amounts in controversy, each party’s relative access to relative information, each party’s respective resources, the importance of the requested discovery in resolving the issues in question, and whether the burden or expense associated with obtaining proposed discovery outweighs the likely benefit from obtaining said discovery. See F.R.C.P. 26(b)(1). An important caveat to the above, information sought to be obtained does not necessarily have to be admissible to be discoverable – the universe of discoverable information is broader than admissible evidence.
In light of the rules regarding discoverable information, when a party seeks to discover private social media information, it may become hotly contested. In these instances, a plaintiff who seeks to resist the discovery of private social media information will often times cite privacy concerns. However, when presented with such claims of privacy against sought discovery of private social media, courts have frequently answered positively that private social media information is discoverable. Although private social media information is often found to be discoverable, this isn’t to say that courts are inclined to allow for boundless disclosure, or provide unfettered access to a person’s social media account(s).
Rather, when called to rule upon discovery disputes regarding private social media accounts, or the information contained therein, courts largely rely upon the rules that direct the scope of discovery generally. Through a survey of recent decisions, courts have resoundingly found no reason to treat information contained on social media platforms as being different than information available in other platforms and media. Despite this, courts have consistently recognized that social media platforms often contain information that would be entirely irrelevant to resolution of a controversy, and therefore not discoverable.
To balance the competing interests between a plaintiff (who may reasonably wish to keep some information private), against the interests of a defendant (who may reasonably seek information contained on private social media platforms), various courts have suggested the following possible solutions:
- Tailoring the scope of disclosed information to those matters which might have bearing on the merits of a given controversy;
- Providing that information disclosed from a private social media account will be subject to a protective order;
- A Court may impose temporal limitations as to the extent to which private social media information may be discovered;
- A Court may impose scope-of-access limitations against the party seeking discovery;
- A party’s privacy interest in private social media information may protected by first conducting in camera review in light of disclosure;
- By asserting various claims, such as loss of consortium, or physical/emotional pain and suffering, a plaintiff may waive right to later claim privilege to such information; and
- A Court may honor an individual’s privacy interest by ordering her counsel to conduct initial review for relevant information, prior to disclosure of such information.
Therefore, it seems courts are generally receptive to approving of discovery requests for information contained on private social media accounts. However, the extent of discovery allowed, the temporal limitations of discovery, and the protections afforded to any such disclosed information, may vary from case to case. Lawyers should strongly consider crafting their discovery requests to anticipate how a court may rule.
