With Social Media Discovery as with much other Electronic Discovery, the key issue is often defining and managing burden. Begin with the end in mind – you need to know what you want and you need to know the paths and the obstacles to getting there. Can you cut to the chase with the opposing party? Need you leave yourself room to compromise? Are you prepared to walk through the steps to show the opposing party how to produce what you need without breaking its bank? Can you explain the process to the court when you face opposition?
Sometimes, requests for social media discovery overreach. Asking an opposing party to turn over his/her or its login credentials can rarely, if ever be justified. See The Sedona Conference, Primer on Social Media, Second Edition, 20 Sedona Conf. J. 1 (forthcoming 2019) at 24 n. 34, 35 (“Primer”). If the request becomes the subject of a motion to compel it would lead to obvious skepticism from most judges. Id. At n. 34. Likewise, a party suggesting that he or she cannot produce responsive social media from an existing account because it is outside the party’s custody or control or that production requires more technology than the party has will likely never convince a judge that the party’s relevant social media evidence may be withheld.
The simplest example may be a Plaintiff’s use of Facebook prior to, at the time of and after the accident at issue. See Primer at 25-26 (discussing Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401 (D. Wyo. 2017). From a defense perspective, knowing what the plaintiff represented about his or her life activities prior to and after the accident can be very useful in assessing damages. Facebook Messenger texts to family and friends may have information that could be very relevant if they characterize the circumstances of the accident and its impact in the immediate aftermath of the accident. Targeted requests seeking posts; photos and messages regarding life activity before and after the accident (if plaintiff is alleging short or long term impact); messages regarding the circumstances of the accident; and other information that can be demonstrated to be potentially relevant during a defined time period; will be hard for a plaintiff to avoid.
The bottom line is that Social Media accounts will be in play often and counsel need to know how to effectively advise clients on preservation, collection and examination of such sources of evidence when they are in play. Failure to push opponents to provide what they need to provide under the trial rules may lead to missed opportunities for success.
Coming in June: Social Media Discovery and Evidence Part 3 – 19th Nervous Breakdown.