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Social Media Profiles Fair Game in Discovery

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In today’s world, most people have at least one social media profile online, whether it be a Facebook account, Twitter account, Instagram profile, etc. Despite the prevalence of social media in our society, some plaintiff’s lawyers strenuously object when a defendant requests social media posts and photographs from their client’s accounts. This may be due to the fact that many clients continue to post photos of vacations, outings, and other examples of how their life has not really changed all that much, despite claiming significant “pain and suffering” damages in their personal injury lawsuit.

It is important to remember that social media is simply a form of electronically stored information. This means it is subject to civil discovery.

In 2006, the Federal Rules of Civil Procedure were amended to include electronically stored information and that term was meant to be interpreted expansively and incorporate all “current and future electronic storage mediums.” According to the amended rules, information stored on the cloud and on social media sites are viewed as discoverable electronically stored information. 

Be Prepared for Objections

When a plaintiff’s attorney receives a discovery request from defense counsel asking for all of their client’s social media posts, photos, listing of accounts, etc. they usually issue an objection challenging the scope of the request. They typically argue that the request is too broad or unduly burdensome.

For example, in some cases, defendants sought to compel the plaintiff to provide them with all of their social media login credentials (e.g., passwords). In fact, in a product liability case titled In re: Cook Med., Inc., IVC Filters Mktg., Sales Practices & Prod. Liab. Litig., MDL No. 2570 (S.D. Ind. 2017), the court confronted this very type of discovery request. The court did not grant the request stating that compelling the plaintiff to disclose their login passwords would be unduly burdensome and invasive when weighed against the needs of the case. The court went further in stating that a defendant does not get to enjoy “unfettered” access to a plaintiff’s social media account so they can “rummage through their social media without a showing of relevance.

Most defense attorneys have figured out that requesting social media posts and account information can be an effective way of obtaining information that could be used to impeach the credibility of the plaintiff, which has led to more nuanced social media discovery requests. Below is an example of a detailed, specific discovery request that was viewed as reasonable and appropriate by a district court:

Defendant requests that Plaintiff produce all postings related to activities engaged in by Plaintiff from June 8, 2017, to present on all social media platforms, including, but not limited to Twitter, Facebook, MySpace, Google Plus, and Instagram.

Another good way to obtain social media information is by requesting all social media data related to the plaintiff’s travel, medical conditions and treatment, social outings and activities, and alleged economic and non-economic damages. Defendants can argue that this type of request is reasonable and appropriately scoped when a plaintiff claims they suffered a loss of enjoyment of their life and other pain and suffering damages. 

Schedule a Meeting with a Brownsville Corporate Defense Attorney

When you, or your company, is subjected to litigation, it is important to have experienced and aggressive counsel on your side. That is why you should contact the law firm of Colvin, Saenz, Rodriguez & Kennamer L.L.P. We possess decades of experience representing corporate entities, insurance companies, and individuals in court.

Resource:

insd.uscourts.gov/mdl-case-information

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