The Ethics of Social Media, Pt. 4 [Slideshow]

Part 1: The Importance of Social Media to the Modern Law Practice
Part 2: Marketing Your Practice on Social Media
Part 3: Personal Use of Social Media
Part 4: Social Media in Discovery
Part 5: Social Media as a Research Tool
Part 6: Advise Your Clients Wisely! (June 12, 2014)

Knowing how to use social media is important not only to improve your ability to market your firm. Social media is ubiquitous in our society – everyone uses it in some form or another. Messages, pictures, videos… discoverable, frequently relevant information.

It’s becoming increasingly clear that in order to competently perform our jobs as litigators, we have to know how to request, and produce, social media information in discovery. In part 4 of my presentation, The Ethics of Social Media, I discuss ways to conduct discovery involving social media.

When requesting social media in discovery, there is an essential distinction that you must understand in order to be effective: the difference between making a narrowly-tailored, effective request and an overly broad fishing expedition. The first request will be honored – opposing parties will be obligated to search their own social media for responsive information. The second request will result in being bench slapped.

Understanding the difference is beginning to be thought of as an ethical requirement.

At the moment, there is no existing standard for what truly separates an overreaching fishing expedition from a relevant, appropriate request. Various courts have decided the issue in very different ways.

In Moore v. Miller, No. 1:10-cv-00651-JLK-MJW (D. Colo. June 6, 2013), the court held that the plaintiff’s entire Facebook history was discoverable in a personal injury action.

In Salvato v. Miley, No. 5:12-cv-00635 (M.D. Fla. June 11, 2013), in an action against sheriffs deputies, the court held requests for defendant’s social media history constituted an unnecessary fishing expedition.

In Giacchetto-v-Patchogue-MedfordUnion, No. CV 11-6323 (E.D.N.Y. May 6, 2013), the court found that requests for all of plaintiff’s social media was over broad, but required plaintiff to produce all social media posts related to plaintiff’s emotional distress claim. Additionally, the court held that it was the responsibility of plaintiff’s counsel to review plaintiff’s discovery to determine what information is relevant, rather than plaintiff herself.

In Howell v. Buckeye Ranch, Inc., No. 11-CV-1014 (S.D. Ohio Oct. 2012), the court held that social media discovery is subject to the traditional relevance analysis.

Mailhoit v. Home Depot U.S.A., Inc., Case No. 2:11-cv-03892-DOC-SS (C.D. Cal. Sep. 7, 2012), similarly held that discovery requests must be reasonably tailored, prohibiting open-ended fishing expeditions.

Important considerations when requesting social media:

• Ask for what’s relevant to your case – otherwise risk having the entirety of your request thrown out;
• Don’t accidentally limit your requests by identifying specific social media sites like Facebook or Twitter;
• ALWAYS include in your request an instruction that plaintiff’s attorney conduct the review of plaintiff’s social media
• Remember to ask for photos from sites that are exclusively photo oriented – including Flickr and Instagram;
• Don’t forget to request video;
• Ask for plaintiff’s usernames on all social media sites (but don’t ask for passwords – it’s highly unlikely that a judge will give you unfettered access).

Also, when responding to discovery, make sure that your client is providing everything to you. Make sure that you’ve reviewed their social media, and that potentially relevant information isn’t being withheld for no reason. Also, NEVER instruct your client to alter, modify or delete any of their existing social media posts – it can result in an adverse inference instruction!