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Production of Social Media: Privacy and Targeted Production Requests

Created on November 10, 2011

Vice President, E-Discovery

Over the past couple years, the murky waters surrounding the discoverability of electronically stored information (ESI) created on social media sites, such as Facebook, MySpace and Twitter, have somewhat cleared. The current climate typically allows parties to seek production of evidence, including ESI created in social media, which is necessary in the defense or prosecution of a lawsuit. But what does all “necessary" evidence actually mean? Does it apply to social media information that is set as private? Are there limits on how much social media information can be requested? On October 27, 2011, in Patterson v. Turner Construction Co., 2011 NY Slip Op 07575, the New York Appellate Division, shed some light on these questions, ruling:

  • Privacy: “Plaintiff's online Facebook account, if relevant, is not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access, just as relevant matter from a personal diary is discoverable."
  • Specific Production Requests: Must be a “more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, diabilities, and losses and other claims."

In Patterson v. Turner Construction Co., the plaintiff, Patterson, filed a personal injury suit, claiming damages for emotional and physical injuries. As in many personal injury cases, the defendant, Turner Construction, wanted access to the plaintiff's Facebook account to prove that punitive damages may be excessive. Parties are entitled to request this type of information, even if the user restricts access to their Facebook account, the defendant made the mistake of formulating an overly broad production request.

The ruling in Patterson exemplifies a common theme that courts will no longer allow parties to request general, overarching discovery requests without identifying what specific ESI it wants produced. These broad discovery requests lead to increased litigation expenses, which is exactly what the courts are trying to prevent (see Judge Rader's model order for patent cases).

To defend against these broad production requests, legal teams need to be proactive in gaining visibility into the facts surrounding the case. This starts by identifying and understanding all the relevant ESI potentially relevant to the matter, including that stored on social media sites. To do so, legal and IT teams need a process and automated technology that gives them the ability to quickly and efficiently identify key custodians, interview those custodians, locate the ESI, analyze it and understand the case scope prior to initial negotiations at the 26(f) conference. Through this approach, the legal team will be empowered to defend against overly broad production request and mitigate potential discovery costs.

To learn more about implementing an efficient and effective e-discovery process, check out a prior E-Discovery Beat post here.

Mike Hamilton, J.D. is the E-Discovery Market Analyst at Exterro, Inc. Hamilton works in a product management and marketing role to ensure Exterro's Fusion e-discovery applications closely reflect the needs of legal teams. Within the complex e-discovery world, Hamilton's knowledge, legal acumen and experience give him a valuable perspective on bridging the gap between IT and legal teams.