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Opening the Door to Social Media Content through Discovery

October 02, 2020

The abundance and sophistication of social media platforms has changed our society.  Social media is impacting our personal and professional worlds.  For the most part, it has been a positive tool.  Today, we can connect with people across the world, exchange ideas, and expand our network all just with the click of a button.  In the legal community, social media has the potential to change the way attorneys search for and uncover evidence.  Due to the enormous growth, social media platforms have evolved into fundamental pillars of communication. Therefore, not surprisingly, social media has created a wealth of material, photographs, and communications that could be discoverable in civil litigation.

“In civil lawsuits for damages, especially in the personal injury and insurance litigation context, potentially relevant discoverable information is often abundant on these [social media] sites.”[1]  As a result, the scope of discovery into social networking information is uncharted territory for courts.  Thus, predicting a court’s limitations on such discovery is still relatively unknown. Judges are left to apply basic civil discovery principles when addressing counsel’s arguments on the proportional limits and relevance of social media content.  In the end, it is seemingly apparent that there is no expectation of privacy in social networking, especially given its relevance in personal injury and insurance litigation.

The usage of social media platforms is continuing to grow, and its capabilities are evolving. Statistics from 2019 show that there were 3.5 billion social media users worldwide, which equates to about 45% of the current population.[2]  The social media giant, Facebook, remains the most widely used social media platform with over 2.32 billion active monthly users.[3]  It should come as no surprise that millennials lead the way as the generation with the highest usage of social media.[4]  Gen X is a close second, but Baby Boomers are gradually increasing their familiarity with social media platforms.[5]  More importantly, the amount of content and time spent on social media networks is increasing as users possess access with multiple devices and profiles.  In 2019, research indicated that users were connected to social media platforms for up to 3 hours per day, and even longer interacting at their mobile devices.[6]  Moreover, 2020 polls and surveys are reporting a significant increase of social media usage due to the limited human interaction from quarantine and the health pandemic.[7] 

In this social media era, the decline of a person’s expectation of privacy is an inevitable result.  On that point, a federal district court has ruled that a discovery request for social media accounts has the potential to reveal private information which could embarrass a litigant.[8]  Further, the court held that “this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.”[9]  Nonetheless, attorneys must connect requests for social media content to the present litigation.[10] One cannot reasonably expect all information contained on a social networking site to be material to a case.[11]  This should be the guiding principle for attorneys when crafting discovery requests.  Strategically, attorneys should consider determining what relevant information may be included on a party’s social media account and its potential value to any claims or defenses.  Also, an independent search may reveal that a party’s account is open to the public.  If not, counsel needs to craft discovery narrowly tailored to request a party’s social media account access information.  Finally, one should be prepared to compel and argue the possible relevance of the information contained in those accounts.

In my opinion, attorneys would be remiss to not at least probe to see whether an individual’s social media site contains discoverable material relevant to a claim or defense.  The statistical data supports civil litigators who are looking to uncover relevant evidence on social media.  In Virginia, there is not a great deal of reported case law or applicable statutes on how litigants can obtain a party’s social media posts and activity through discovery.  Generally, courts will allow discovery of material posted on social networking sites if it is relevant to the litigation and such requests are narrowly tailored.   For example, in 2012, the Circuit Court for Greensville County held that a defendant seeking discovery of a plaintiff’s social networking activity was relevant given that the plaintiff put his mental and physical state at issue by filing the a lawsuit for personal injuries and, then chose to share potentially relevant information with others on the Internet.[12]  However, there has been a lull in published opinions from Virginia’s trial and appellate courts on this subject. 

As usual, courts are reacting to the problem and are somewhat behind the development of the technology and its impact on our society. Courts will continue to struggle to adapt traditional discovery principles (relevance, scope, and proportionality) to the new and evolving world of social media.  Thus, attorneys should be creative and instructive when arguing how these principles apply in the new age of social media networking sites.  The lack of published opinions in this jurisdiction indicates an opportunity for attorneys to generate changes in the law that will impact civil litigation for years to come.

Barrett Luxhoj is a Pender & Coward attorney focusing his practice on construction law, insurance defense and civil litigation.

[1] Even E. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279, 1286, (2010). 

[2] Maryam Mohain, 10 Social Media Statistics You Need to Know in 2020, 7 Aug 2020 (citing Emarsys, 2019).

[3] Id.

[4] Id.

[5] Id. 

[6] Id. (citing Globalwebindex, 2019).

[7] July 2020 saw a rise of 10.5% in social media usage, compared with July 2019, according to a GlobalWebIndex survey.

[8] EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 437 (S.D. Ind. 2010)

[9] Id.

[10] Davenport v. State Farm, 2012 U.S. Dist. LEXIS 20944 (M.D. FL. 2012)(plaintiff ordered to produce any photographs posted on social media after the date of the accident)

[11] Chauvin v. State Farm, 2011 U.S. Dist. LEXIS 121600 (E.D. Mich. 2011)(denying requests for production of plaintiff’s Facebook account because there was not factual predicate that access to social media accounts would lead to discovery of admissible evidence)

[12] James v. Edwards, 85 Va. Cir. 139, 140-41 (Greensville 2012).

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