Bermudez, Victor - E-Discovery of Social Media: Discoverability

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

“A party may serve on any other party a request . . . to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form;” 

Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv- 00127-PK (D. Or. Aug. 29, 2012) (Case Summary) (Court Opinion) 

• Employment discrimination case
• Defendant requested all social media content involving Plaintiff over a four-year period, including photographs, videos, and blog entries, as well as Facebook, LinkedIn, and MySpace content that revealed or related to Plaintiff’s “emotion, feeling, or mental state.”
• Ordering broad discovery of electronic communications and social media content, the Court found “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” 1 2

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010). (Case Summary) (Court Opinion) 

• Personal injury case 
• Defendant sought access to Plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords. 
• Plaintiff objected, arguing that the information was confidential. 
• Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts. 1 3

• Article first summarizes the varying bodies of law that courts have employed in determining when social networking information is discoverable. Next, this Article looks at three recent decisions that apply one or more of the above rationales and shed light on the discoverability of social networking data and the credentials—i.e., the usernames and passwords—needed to access that data: McMillen v. Hummingbird Speedway, Inc., Romano v. Steelcase, Inc., and McCann v. Harleysville Insurance Co., all decided in 2010.​

Federal Rule 26 was amended effective December 1, 2015. The amendment placed an emphasis on the proportionality requirement of Discovery requests. Furthermore, the amendment removed the “reasonably calculated” language from the Rule.          

Rule 26. Duty to Disclose; General Provisions Governing Discovery

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable."

"the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive"

Chief Justice Roberts, 2015 Year-End Report on the Federal Judiciary (Full Report Here)

• Chief Justice John Roberts has issued his annual report on the federal judiciary, focused primarily on the 2015 amendments to the Federal Rules of Civil Procedure, including a brief history of their development and discussion of their intended effects. Among other things, the report makes clear that the amendments “mark significant change, for both lawyers and judges, in the future conduct of civil trials.” 

Despite Advent of New E-Discovery Rules, Old Judicial Habits Still Infect Federal Decisions (Read Here)

• Issue of Legal Backgrounder explains that some courts have embraced the express intent and language of the new amendments to the Rules, while others have been reluctant to acknowledge the changes and their significance.

6 Months of Case Law Under the New FRCP, Kroll Ontrack. (Read Here)

• A digest of the most prominent judicial opinions issued after amendments to the Federal Rules of Civil Procedure on December 1, 2015

Rule 26. Duty to Disclose; General Provisions Governing Discovery

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable."

Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013). (Case Summary) (Court Opinion) 

• ADA / NYSHRL case involving adult ADHD diagnosis
• Defendant initially requested that Plaintiff provide “authorizations for the release of all records from Plaintiff’s social networking accounts,” including Facebook, MySpace, and Twitter, and argued that the information was relevant because it reflects Plaintiff’s “levels of social interaction and daily functioning” and “emotional and psychological state.”
• While it ordered discovery of some social media content, the Court held that, if it “were to allow broad discovery of Plaintiff's social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or sent since alleged incident.” 1 4

• Where defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims. 
• The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns. 1 5

• Where lower court granted motion to compel authorization for all of plaintiff's records on an online social networking service, appellate court reversed and remanded "for more specific identification of plaintiff's Facebook information that is relevant."
• The Court noted that if relevant, the content of plaintiff's account was "not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access".

• Where the public contents of one plaintiff's Facebook account established that it was "reasonable to believe" that other relevant information may also be present, lower court only directed plaintiff to produce certain photographs
• Appellate court remanded with instruction that the court conduct in camera review of "all status reports, emails, photographs, and videos" to determine which of those materials, if any, were relevant
• As to a separate plaintiff where no showing of potential relevance was made, appellate court found lower court properly granted her motion for a protective order.

• The court granted (in part) Defendant's motion to compel production of the contents of Plaintiffs Face book and MySpace accounts from April 2007 through the present and ordered that the contents be uploaded to an external storage device and produced to defense counsel for review and identification of "discoverable" materials 
• court's analysis included consideration of defendant's assertions that the information was relevant to post-accident social activities, mental state etc. where defendant had previously accessed plaintiffs public Facebook profile before account settings were altered and plaintiffs limited production of information prior to defendant's motion to compel. 1 6

• Where Defendant demonstrated that there were probative photos on Plaintiff's Facebook and elsewhere (i.e. "a hockey blog") , the court reasoned that it was "therefore reasonable to believe that other portions of his Facebook account may contain further evidence relevant to the issue of Plaintiff's injuries,"
• Court ordered Plaintiff to provide for in camera inspection "all photographs depicting sporting activities posted on the demanded media sites" and "copies of all status reports, emails, photographs, and videos posted on Plaintiff's media sites since the date of the subject accident".

• Court acknowledged the discoverability of social media content but reasoned that "[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand," and thus denied Defendant's motion to compel.

• Article first summarizes the varying bodies of law that courts have employed in determining when social networking information is discoverable. Next, this Article looks at three recent decisions that apply one or more of the above rationales and shed light on the discoverability of social networking data and the credentials—i.e., the usernames and passwords—needed to access that data: McMillen v. Hummingbird Speedway, Inc., Romano v. Steelcase, Inc., and McCann v. Harleysville Insurance Co., all decided in 2010.

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

"A party may serve on any other party a request within the scope of Rule 26(b) . . . to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control"

• Employment discrimination case where Plaintiff requested text messages sent and received using the personal mobile phones of other Costco employees. 
• Applying the standard that “documents are deemed to be within the possession, custody or control if the party has actual possession, custody or control or has the legal right to obtain the documents on demand,” the Court held that Defendant did not have “possession, custody, or control” over the text messages on these employee-owned devices and denied Plaintiff’s motion to compel.

• Antitrust case where Plaintiff moved for sanctions, alleging that Defendant’s failure to preserve e-mails stored in certain employees’ personal email accounts led to spoliation of evidence.
• The court agreed that spoliation had occurred and found that Defendant should have taken steps to preserve these e-mails in light of its knowledge of the employees’ use of their personal e-mail accounts for business purposes.
• However, no sanctions were imposed due to a lack of evidence of bad faith or prejudice.