Social media is where we go to tell people about what’s going on in our lives, particularly for millenials and Gen-Xers. It stands to reason, then, that social media is one of the first places attorneys should look during discovery. In the abstract, failing to request social media in discovery is really poor litigation strategy at best, legal malpractice at worst.
Practically speaking, actually obtaining all relevant information from an opposing party’s social media will rarely be worthwhile, and in general, doesn’t work.
There are a lot of reasons why: 1) the sheer number of social media options available now render many requests irrelevant because they’re either to0 narrowly written or incredibly overbroad; 2) many attorneys use the same form discovery they’ve used for years… which predate the Carter administration, let alone the rise of social media.
I’m a peaches and Snapchat man, myself.
However, other barriers that are not quite as institutional stand between an attorney and full, complete disclosure of relevant social media. Those barriers are tedious and often expensive to overcome. And it is due to those barriers that social media discovery is a waste:
1) Social Media Discovery relies on the willingness and honesty of opposing party.
So you write your discovery, narrowly tailored to the personal injury case that you’re defending. It asks for all posts concerning the injury in question, as well as any posts concerning the emotional trauma the injury allegedly caused, as well as the loss of consortium claim that has been posted. No question that they would hold up under a judge’s scrutiny. You send them to plaintiff’s attorney, whose paralegal calls up the plaintiff and asks… what exactly?
That’s right – the effectiveness of the carefully crafted discovery request that you worked on for 20 minutes relies entirely on the paralegal getting the plaintiff to be honest… and the plaintiff giving an honest response back!
Let’s say that even after this exchange, plaintiff’s counsel actually takes the time to verify the information plaintiff provided, which we know is unlikely. (FYI, I’m not accusing the plaintiffs attorneys of misconduct, just recognizing that it’s not in their general business plan to spend time giving their clients the 3rd degree about discovery responses.)
I sure hope they’re honest, because if they’re not…
2) Getting a judge to order plaintiff to disclose additional social media data likely requires proof that some has been withheld.
That’s right, first you had to rely on plaintiff’s honesty that you actually received a complete list of their social media accounts, and of all relevant posts. Now, in the event you believe that you didn’t get it all, you’d better have information to back that up if you want an order for them to produce more!
Ok, so you’ve obtained an order from the judge to get everything. Guess what: now you have to rely on plaintiff’s counsel again. Why? Because…
3) Social media companies will not provide you information from plaintiff’s account, even if you’ve issued a subpoena.
That’s right, that tool of yours that even hospitals and chiropractors begrudgingly responded to will get you nowhere with social media companies. How is that possible? It’s called the Stored Communications Act. It’s apparently so significant, that Facebook has actually posted this on their website:
“Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena.”
To read the rest, click here.
It’s just our way of saying that we’re above the law, and we know it.
Facebook does indicate that if you REALLY want to get the information, it can be made available to the user in the form of a total account download. However, the download can only be done by the account holder or someone with their username and password. So we’re right back where we started, relying on the honesty of the plaintiff and the willingness of plaintiff’s counsel to spend significant amounts of time helping your case.
So what about attempting to obtain the information yourself…
4) You’re only allowed to obtain the information that the opposing party has made open to the general public… and hasn’t deleted.
You are not allowed to contact an opposing party ex-parte, which includes requesting them to be your “friend” or “contact,” and may even extend to “following” them on any number of sites. So you’re only allowed to access information they’ve made available to the general public. Oh yeah, and only the information they’ve decided to make available on the day you look.
If they’ve decided to delete that post where they’re demonstrating Cirq-de-Solei acrobatic moves just two weeks after allegedly suffering a debilitating injury, you’re SOL.
But even if you find information available on their social media page, and make a screenshot of that page…
5) Information obtained from social media outside of discovery is very difficult to authenticate.
Without supporting admission from the opposing party that the entry did, in fact, come from their social media account (or some other similarly significant supporting evidence, like the metadata your expensive eDiscovery consultant provides), your printout is likely useless.
Even if you get access to the printout of the account, or better yet, the native format version of the account, actually filtering and deciphering that information is likely going to require hiring an eDiscovery expert or purchasing a software tool like X1 (which runs a nice $1,500 – per year – for a single license).
As it stands, discovery of social media accounts and posts is far too onerous to be cost effective in most litigation. Without some sort of reform, attorneys must obtain expensive outside consultants or risk ethical violations whenever opposing counsel decides they’re simply not going to provide complete responses to discovery requests. For many of us, it’s simply not worthwhile.
Correction: An earlier version of this post erroneously indicated that a failure to authenticate a MySpace page printout resulted in an overturned murder conviction. My thanks to Alan Martin for pointing out my mistake!