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Discovery of Social Media Information is Subject to Same Rules as Paper Discovery

Posted in Electronic Discovery, Social Media

In a recent decision, a court in the Southern District of Ohio denied a motion to compel the plaintiff in an employment discrimination action to give the defendants her user names and passwords for each of the social media sites she uses. In Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012), the court said “[t]he fact that the information defendants seek is an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files.” Applying this reasoning, the court held that the defendants’ discovery request was overbroad because turning over the plaintiff’s user names and passwords would give them access to “all the information in the private sections of her social media accounts—relevant and irrelevant alike.”

Although the court denied the motion to compel, it did find that relevant information in the private section of a social media account is discoverable, and that this information is not privileged or protected from discovery by a common law right of privacy. Moreover, the court stated that the plaintiff had a continuing duty to preserve all the information in her social media accounts and that the plaintiff’s counsel should advise defendants’ counsel if any information in the private sections of the accounts had been deleted since discovery was served.

The court’s analysis of the discoverability of information on social media sites is consistent with how other federal courts have ruled recently. In Mailhoit v. Home Depot U.S.A., Inc., Case No. 2:11-cv-03892-DOC-SS (C.D. Cal. Sep. 7, 2012), for example, the court held that discovery of content from social media sites requires the application of basic discovery principles such as relevancy and proportionality. It also requires that document requests describe the information to be produced with “reasonable particularity.” According to the court, the discovery rules “do not allow a requesting party ‘to engage in the proverbial fishing expedition, in the hope that there might be something of relevance’” in a party’s social media account. Id. [quoting Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)]. Rather, the discovery sought must be relevant to the parties’ claims and defenses and “comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.”

In Robinson v. Jones Lang LaSalle Americas, Inc., Case No. 3:12-cv-00127-PK (D. Ore. Aug. 29, 2012), the court likewise saw “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” The court then applied the same relevancy standards set forth in Federal Civil Rule 26(b)(1) that apply to other documents and also indicated that courts have the discretion to limit the scope of social media discovery through principles such as proportionality.

These decisions show that federal courts are inclined to analyze the discoverability of information on social media sites just like they evaluate the discovery of paper documents and other types of electronic files. Courts are finding that requesting parties are not necessarily entitled to obtain all the information posted to a social media site but that such information is discoverable if it is relevant to the parties’ claims and defenses in the lawsuit. Courts also are finding that general discovery principles such as proportionality may limit the scope of social media discovery. Because courts are treating the discovery of information on social media sites just like other documents, parties need to be aware that they may have a duty to preserve social media information when litigation arises or is reasonably anticipated.