By the end of 2013, half of all companies will be asked to produce social media content in e-discovery, according to a recent study – but that does not mean that parties have access to this information wholesale. Rather, parties seeking social media evidence must strategically frame their requests to meet the requirements of the Federal Rules of Civil Procedure.

Avoiding Overly Broad Requests
For example, courts generally reject requests for an adversary’s social media usernames and passwords. Because these requests would provide access to all of the person’s social media information, regardless of relevance, they are typically found to be overly broad.  In Howell v. The Buckeye Ranch, Inc., No. 2:11-cv-1014, 2012 U.S. Dist. LEXIS 141368 (E.D. Ohio Oct. 1, 2012), the court shot down the defendants’ request for an adversary’s Facebook username and password noting “the fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.” Although the defendants’ relevancy argument—that certain content on the adversary’s public Facebook page made it possible that other private content could disprove her emotional distress claims—was plausible, the court advised defendants to instead serve requests for “information from the accounts that is relevant to the claims and defenses in this lawsuit.”

To satisfy the “reasonable particularity” standard of Rule 34(b)(1)(A), parties must draft their requests carefully. As a recent decision shows, requests for any social media profiles, posts, or messages that “reveal, refer, or relate to any emotion, feeling, or mental state” of a party may be too broad to pass muster. Mailhoit v. Home Depot U.S.A., Inc., No. CV 11-03892 DOC (SSx), 2012 U.S. Dist. LEXIS 131095 (C.D. Cal. Sept. 7, 2012). The defendants in this discrimination case also sought related third-party communications that would add context to the plaintiff’s posts and any pictures of the plaintiff on the social media sites. The court ruled that these requests were similarly too far-reaching.

Narrow Requests Win
However, the court did approve another request for social media “communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit.” Unlike the other requests, the court stated this more narrowly tailored request was “reasonably calculated to lead to the discovery of admissible evidence.” Because this type of request related to the claims at issue and gave the plaintiff reasonable notice of the information sought, the court permitted it.

These examples show that parties seeking social media evidence to support their claims should avoid a request that resembles a fishing expedition; instead, they should frame their requests to track the specific claims at issue.

Rachel Teisch is Senior Director of Marketing at Xerox Litigation Services. She can be reached at info@xls.xerox.com.

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