Peer to Peer Magazine

64 How are courts treating social media evidence in the discovery process? It's highly unlikely a litigant could go into court and say to opposing counsel, "Give me the entire contents of your client's Facebook account." Although in some early cases, such as EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), courts rejected privacy arguments and ordered broad social media production, courts have consistently placed limits on what social media evidence a litigant can get. For instance, in Mailhoit v. Home Depot U.S.A., Inc., No. CV 11-03892 (C.D. Cal. Sept. 7, 2012), a federal district court rejected Home Depot's attempt to get broad social media discovery in an employment discrimination action. Home Depot argued it was entitled to Ms. Mailhoit's social media data to conduct discovery on her claims about her emotional and mental state. Ms. Mailhoit conceded that Home Depot was entitled to "adequately tailored" social media discovery, but she argued Home Depot was attempting to "rummage" through her social media "in the hope of concocting some inference about her state of mind." DH For the most part, the court sided with Ms. Mailhoit, rejecting three of Home Depot's four requests for social media data. The court noted, "Plaintiff has placed her emotional state at issue in this action and it is conceivable that some [social network site] communications may support or undermine her claims of emotional distress." However, the court held Home Depot's broad requests— including a request for all posted photos over a seven-year period—was overly broad. In rejecting most of Home Depot's social media discovery requests, U.S. Magistrate Judge Suzanne Segal illustrated the shortcomings of broad social media discovery: "Even if the first part of this category, which seeks communications relating to 'any emotion,' could be understood to encompass only communications containing specific emotive words (which the request does not identify), the category would still arguably require the production of many materials of doubtful relevance, such as a posting with the statement, 'I hate it when my cable goes out.' The second part of the category, which seeks communications relating to 'events' that could 'reasonably be expected to produce a David Horrigan Discovery Counsel and Legal Education Director, Relativity The electronic discovery of social media has been an important topic over the last several years as new platforms and evolving technologies change the rules of the ballgame. Courts have provided guidance on the admission of social media evidence over the years, and the 2017 amendments to Federal Rule of Evidence 902 made a significant change to how litigants can get social media data into court. Of course, the new Fed. R. Evid. 902(13) and Fed. R. Evid. 902(14) aren't the only rule changes affecting the e-discovery of social media. The 2015 amendments to the Federal Rules of Civil Procedure—perhaps most notably, the amended proportionality provisions of Fed. R. Civ. P. 26(b)(1)—have impacted social media discovery. Social media evidence has become an important tool in litigation, many times taking the place of investigative tools of a bygone era when private investigators with cameras stalked their subjects. Who needs a private eye when you can get all the data you need from Facebook?

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