For attorneys representing individuals in the modern era, discovery requests for social media are now commonplace. While no attorney would ever request “every letter, conversation or other communication” by your client, attorneys do not hesitate to ask for all social media produced by your client, even though this is just another form of interpersonal communication.
What separates social media from “official” communications contained in business or medical records is that social media is prone to be loose talk that is easily misconstrued. For instance, a severely injured client may boast to a friend “I’m gonna be rich!!” after a serious injury. It does not make the injury any better, but it does make the client look bad. It is imperative to warn clients at the outset of representation not to publish litigation-related communications on social media. But what happens when the client has already done so?
I recently received discovery requests that sought all communications that my client had with Myspace, Facebook, Twitter, Foursquare, Friendster, Classmates, Graduates, LinkedIn, Livejournal, Reunion, Myyearbook, Hi5, Google+, Instagram, Yahoo360, Youtube, Google Video, GoFish, Twango, any photo-storage site, any blog or online discussion thread, all blogs, vlogs, linklogs, sketchbooks, photoblogs, and/or artlogs, the identity of all “friends” and “contacts,” and the content of all texts and emails. Given their expansive breadth, opposing counsel should have titled these discovery requests “Defendant’s First Massive Fishing Expedition.”
In response, I pointed out that Ohio trial courts have the discretion to limit discovery to prevent fishing expeditions. Id., citing Bland v. Graves (1993), 85 Ohio App.3d 644. Counsel sought all social media because it may contain communications that rise to the level of an admission against interest. Though the format was social media, this discovery request was no different than requesting a party to identify each and every letter, email, telephone call and oral communication that took place during a given timeframe. Plainly, such a request constitutes an impermissible fishing expedition.
Secondly, I argued that the requested discovery does not meet the test for production of “electronically stored information” set forth at Ohio Civ.R. 26(B)(4). Electronically stored information is discoverable only upon showing good cause.
Finally, a party cannot be compelled to provide access to social media due to federally protected privacy interests. Federal law prohibits a party obtaining data directly from an internet host (e.g., Facebook). The Stored Communications Act (“SCA”) prohibits providers of communication services from divulging “to any person or entity the contents of any communication” which is carried, maintained or stored by that service. See 18 U.S.C. sec. 2702. The SCA “creates a set of Fourth Amendment protections by statute….” Crispin v. Christian Audiger, Inc. (C.D. Cal. 2010), 717 F.Supp.2d 965.
For attorneys faced with such discovery requests, the foregoing arguments may be useful in protecting clients from intrusive forays into their social media.