Closing The Loop

Every day, over a billion users log onto Facebook to post status updates, watch cat videos, and share articles they haven’t finished reading. More than one sixth of the world’s total population, or 1.28 billion people, sign into Facebook on any given day, each leaving behind a treasure trove of information about their lives.

For some litigants, this sea of data can provide the perfect place for a discovery fishing expedition, as they seek relevant, nonprivileged information tucked between the likes, DMs, and friend requests. But for the subjects of such requests, such broad discovery often represents an unjustified dive into their daily thoughts. And despite being a good decade into the age of social media, courts navigating these issues can still occasionally find themselves in uncharted waters. 

Offering some guidance comes a recent case from the U.S. District Court for the District of Wyoming. In Gordon v. T.G.R. Logistics, Inc., Magistrate Judge Mark L. Carman reminds us that social media discovery “can be burdensome even as it is inexpensive” and that, while vast amounts of social media data may be easily accessible, requests for such information must still be relevant and proportional.

Judge Carman’s decision comes in response to a discovery request in a personal injury case. Brenda Gordon was driving through Lincoln County, Wyoming, when she was t-boned by a tractor-trailer attempting to pass her as she made a left turn. Gordon sued the driver and the transportation company, T.G.R. Logistics. During discovery, T.G.R. requested that she produce “an electronic copy of your Facebook account history”.

Yes, that’s her entire account history -- every photo shared, every private message sent, every “it’s complicated” relationship status.

Producing such data would not have been difficult. The defendants simply requested that Gordon make use of Facebook’s existing ability to download an archive of a user's account history, something that can be accomplished in about five simple steps.

But Gordon declined to hand over her whole social media history. While she provided data regarding posts about the collision, she did not and would not produce her entire Facebook archive, leading T.G.R. to move to compel production. That left the court to define the proper scope of the requested social media discovery.

 

Striking the Proper Balance in Social Media Discovery


“Social media presents some unique challenges to courts in their efforts to determine the proper scope of discovery of relevant information and maintaining proportionality,” Judge Carman explained. While social media may produce relevant information, “it also has the potential to disclose more information than has historically occurred in civil litigation.”

People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as to all disclosures, conversations or observations. Now far more reliable disclosures can be obtained with a simple download of a social media history.

“Just because the information can be retrieved quickly and inexpensively,” the court continued, “does not resolve the issue. Discovery can be burdensome even as it is inexpensive.” Under Rule 26(c)(1), courts may limit discovery that could cause annoyance, embarrassment, and oppression, as well as undue burden and expense.

On one hand, were the court to approve broad discovery into plaintiffs’ full social media histories, “[i]t’s not hard to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress.” That could also raise a “substantial risk that fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.”

On the other hand, the court acknowledged the defendant's “legitimate interest in discovery which is important to the claims and damages it is being asked to pay,” information which could be found in social media.

How, then, should the court strike the proper balance?

A survey of similar cases did not settle the issue. In some, courts rebuffed broad requests for social media histories. For example, in Equal Employment Opportunity Commission v. Simply Storage Management, LLC (S.D. Ind. 2010), the court rejected a request for the entirety of a claimant’s Facebook and MySpace accounts. “To be sure,” the court explained, “anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she may have talked to.”

Yet, in other cases, courts were less hesitant to rein in such requests. In Moore v. Miller (D. Colo. 2013), the court allowed just such discovery, explaining that the plaintiff “has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened”.


‘Garden Variety’ Claims and Minimal Relevant Information


Eventually, Judge Carman declined to order production of Gordon’s entire Facebook history. Even T.G.R.’s offer to limit discovery to three years of social media posts was “casting the net too wide.”

Instead, the court ordered the plaintiff to produce all relevant history, from the date of the crash onward, which relates to: “significant emotional turmoil” and distress; the accident and its aftermath, including physical or emotional injuries; and her level of activity.

In deciding to limit the discovery, the court looked at several factors. First, Gordon sought damages for both physical and mental injuries. Her emotional distress claim, to which her Facebook data would have been most relevant, was a “garden variety” claim which the defendants “have been effectively defending for many years” and which “typically make up a small part of the damages in physical injury cases.” Allowing discovery of her entire Facebook history would “provide minimal relevant information while exposing substantial irrelevant information.”

Finally, allowing broad access to social media would not “significantly contribute” to an analysis of other claimed injuries, such as traumatic brain injury. Such claims “have long been a subject of the evaluation and diagnosis by experts using proven testing protocols." 

So, is this the definitive guide to proportional social media discovery, the northstar for handling such broad requests, if you will? Hardly.

As the splintered caselaw the court surveyed shows, there’s still plenty of disparity in the treatment of social media history across courts, much of it specific to the facts of each case. Further, the court here, while declining to compel production of all Facebook history, still ordered broad post-accident discovery. That discovery was somewhat ambiguous too -- allowing discovery of any social media related to “significant” emotional turmoil and events. If there’s any confusion as to what’s “significant,” the court advises, Gordon should produce the documents for review in camera.

But while the case won't settle the debate over the limits of social media discovery, for those dealing with broad discovery requests Gordon v. T.G.R. Logistics, Inc. should provide some important guidance.

This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.

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