Discovery and Social Media
Popular social media sites, such as Facebook and Instagram, serve as a platform for individuals to share their lives with a select group of their online friends or the world. These social media accounts may provide key sources of information in litigation which should not be overlooked.
Courts have generally held that social media content is neither privileged nor protected by any right of privacy. See Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012). Even if a person has implemented certain privacy settings with respect to their profile, the information is still not protected from disclosure based on a claim of privacy. E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).
In Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311 (N.Y. App. Div. 2011), the court drew a comparison between private social media pages and a person’s diary, reasoning that in the same way that “relevant matter” from and individual’s diary is discoverable, any relevant material from an individual’s Facebook account is discoverable regardless of the privacy settings utilized by the page’s creator. As one judge has observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.” Simply Storage Mgmt., 270 F.R.D. at 434.
The general rule in light of the foregoing is that an individual’s social media content is discoverable if it falls within the scope of discovery as set forth in Civil Rule 26(b)(1):
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
This rule is designed to permit a broad scope of discovery. Barfield v. City of Seattle, 100 Wn. 2d 878, 883, 676 P.2d 438, 441 (1984); see also Simply Storage Mgmt., 270 F.R.D. at 434 (where relevance is in doubt, FRCP Rule 26(b)(1) indicates that the court should permit discovery).
By: Alicia Dragoo