Social media sites like Facebook, Linkedin, Twitter have created an enormous wealth of new information beyond email, paper documents and spreadsheets. Within legal cases, this social media information has emerged as a substantive form of evidence. Case law has proven that courts will generally deem social media discoverable content under FRCP 34, bypassing privilege or privacy assertions. As a result legal teams now know that social media evidence is fair game within discovery, thus presenting the subsequent question: How do I successfully request social media information from opposing counsel?
Danielle Mailhoit v. Home Depot U.S.A, Inc.(C.D. Ca. Sept. 7, 2012) provides guidance to answering this question. In this employment case, the defendant, Home Depot, filed a motion to compel the plaintiff, Mailhoit, to produce social media information in accordance to four outstanding production requests. The court rejected (3 productions requests) and granted (1 production request) in part the defendant's motion. The court justified its rejection in part due to the defendant's failure to meet Rule 34(b)(1)(A)'s reasonably particularity requirement, meaning that three of the production requests were not “reasonably calculated" to lead to the discovery of admissible relevant evidence.
As most know, legal parties are entitled to discovery of any non-privileged material that is relevant (reasonably calculated to lead to relevant evidence) to their claim or defense. Even though this relevancy requirement is to be construed broadly, the requesting party is not given free rein to ask for everything underneath the sun without giving enough details that the producing party is put on “reasonable notice of what is called for and what is not." In short, under Rule 34(b) the requesting party must describe the information to be produced with “reasonable particularity."
Home Depot's Production Requests Denied Because Overly Broad
Social media information, even though it's a new form of evidence within discovery, should still be treated with the same “basic discovery principles" as any other form of evidence. The defendant, unfortunately, failed to do this leading to the rejection of the three production requests below:
Production Request #1: Sought all social media material (profiles, status updates, wall comments, groups joined, blog entries, activity streams, etc.) for a seven-year period that related to any “emotion, feeling, mental state of plaintiff" or any “events that could reasonably be expected to produce significant emotion, feeling or mental state."
- Rejected: “Any emotion" or “relating to events" did not give the plaintiff notice on what exactly to produce. The court compared the requests to everyday statements like “I hate when my cable goes out" or watching a football game. Both could entice a significant emotion but in turn amount to irrelevant, non-responsive materials that would most likely be produced if this production request was granted.
Production Request #2: Sought all “third party communications to Plaintiff that place her own communications in context."
- Rejected: Like production request #1, “own communications" was unreasonably vague. The plaintiff had no way of deciphering what communications should be produced.
Production Request #3: Sought “any pictures of Plaintiff taken during the relevant time period" and posted/tagged on the plaintiff's profile.
- Rejected: The court stated that “all-encompassing demands that do not allow a reasonable person to ascertain which documents are required do not meet the particularity standard" under Rule 34(b).
THE E-DISCOVERY BEAT'S TAKE
Mailhoit serves as a good reminder that while social media information is discoverable the same discovery principles under the FRCP must be adhered to. In spite of Home Depot's mistakes they did formulate one proper social media production request: 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."
The court ruled that this production request met the requirements under Rule 34(b) by (1) placing the plaintiff on notice of what information to produce and (2) being reasonably calculated to lead to discovery.
For legal teams, it will only be a matter of time before they become educated and well versed in the intricacies of formulating social media production requests. When this time comes, legal teams need to be equipped to adequately respond to these requests. This is where e-discovery technology can help. With features like predictive coding and concept searching legal teams are provided with the requisite capabilities to efficiently and effectively search, collect and produce social media evidence. Even though there still isn't a one-size-fits-all blueprint for addressing this social media challenge, with the right people, process and technology, corporate legal departments can feel confident that potentially relevant evidence is properly identified, collected and produced even if it's just a tagged picture or wall post.
To learn more about how technology can be leveraged to help manage the e-discovery process, please click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.