Litigants defending against personal injury and similar claims increasingly look to information stored on social media sites (“SMS”), which often memorializes the thoughts, feelings, and activities that are relevant to damages claimed by an injured party. Over the past year, New York State courts have issued no fewer than nine decisions concerning the discoverability of SMS data in the context of motions to compel authorized access or the turnover of account passwords. Although personal injury litigation is the primary driver of the development of SMS jurisprudence in New York, the subject also has made an appearance in a few federal cases dealing with employment discrimination claims. Because decisions compelling the production of SMS data are becoming more frequent and prominent, litigants should expect to make and receive discovery requests for SMS information with increasing regularity. E-discovery from SMS sources requires careful planning, due to the balancing act between privacy, undue burden, and the right of discovery.
As Eastern District of New York Magistrate Judge Marilyn D. Go noted this past December, “although the law regarding the scope of discovery of electronically stored information (“ESI”) is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable.” Reid v. Ingerman Smith LLP, 2012 WL 6720752, at *2 (E.D.N.Y. Dec. 27, 2012) (“Reid”). One court provided a useful analogy, likening certain SMS data to an “Everything About Me” folder that is voluntarily shared with others. EEOC v. Original Honeybaked Ham Co. of Ga., 2012 WL 5430974, at *1 (D. Colo. Nov. 7, 2012). “The fact that [SMS data] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” Id.
Many courts currently are grappling with questions concerning the relevant scope of discoverable SMS information. New York courts typically favor liberal discovery, but when it comes to SMS data, there is a particular concern that litigants not use SMS data requests as a fishing expedition. See Fawcett v. Altieri, 960 N.Y.S.2d 592, 597-98 (Sup. Ct. Richmond County 2013) (“Fawcett”); Winchell v. Lopiccolo, 38 Misc. 3d 458 (Sup. Ct. Orange County 2012) (“Winchell”). Accordingly, to successfully compel the production of SMS data, generally one must have a factual predicate for the belief that it will contain probative data. See Kregg v. Maldonado, 98 A.D.3d 1289 (2d Dep’t 2012) (“Kregg”). Typically, parties can establish such a factual predicate by (i) showing that the opposing party has already made public the type of information sought (for example, Facebook profile pictures); (ii) pointing to deposition testimony or similar evidence showing that the SMS contains relevant information; or, to a limited extent, (iii) citing a plaintiff’s claim for loss of enjoyment of life. See, e.g., Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012) (“Glazer”); Richards v. Hertz Corp., 100 A.D.3d 728 (2d Dep’t 2012) (“Richards”); Bianco v. North Fork Bancorporation Inc., 2012 WL 5199007 (Sup. Ct. N.Y. County Oct. 10, 2012) (“Bianco”); Walter v. Walch, 88 A.D.3d 872 (2d Dep’t 2011) (“Walter”); Winchell; Heins v. Vanbourgondien, Slip Op. (Sup. Ct. Suffolk County Sep. 25, 2012) (“Heins”); Abizeid v. Turner Constr. Co., No. 23538/10 (Sup. Ct. Nassau County Sep. 5, 2012) (“Abizeid”).
As two of the more colorful cases concerning SMS show, when a party opposing discovery has already disseminated some relevant SMS data to the public without privacy restrictions, New York courts may find that such postings constitute enough of a factual predicate to compel discovery of other SMS materials. In Abizeid v. Turner Constr. Co., the plaintiff claimed that she sustained permanent injuries and was in constant pain after a slip-and-fall accident in the stairwell of a parking garage. Abizeid, at 2. As part of their motion to compel SMS data, the defendants produced pictures located on the public portion of the plaintiff’s Facebook page that contradicted her claims of injury, including vacation pictures showing her off-roading, serving as a bridesmaid in a wedding, and drinking a large cocktail in a restaurant. Similarly, the plaintiff in Richards claimed an auto accident left her with an impaired ability to play sports and caused pain that was worse in cold weather. 100 A.D.3d 728 (2d Dep’t 2012). The defendants showed the court pictures from the public portions of the plaintiff’s Facebook page that showed her on skis in the snow after her accident. These prior public postings opened the door to further SMS discovery. However, despite the public dissemination of seemingly relevant information on the plaintiffs’ Facebook pages, neither the court in Abizeid nor the court in Richards compelled the plaintiffs to provide defendants with authorizations to access each plaintiff’s entire Facebook account. Citing the potential for overreaching and privacy concerns, both courts ordered in-camera review of the Facebook accounts so that the court could determine what SMS data, if any, was relevant.
Privacy concerns generally are not a bar to discovery, but rather have been deemed to inform whether a request is burdensome or oppressive. See Reid, at *4; Fawcett, at **8-9; Abizeid, at 4-5. With users becoming more familiar with privacy settings on their SMS, however, it might soon be the case that a party seeking discovery does not have access to any publicly available data to use as a predicate for further discovery. In such instances, and in general, some New York courts have required parties seeking discovery of SMS data to predicate a request on deposition testimony or other evidence. See, e.g., Cuomo v. 53rd & 2nd Assocs., LLC, No. 111329/10 (Sup. Ct. N.Y. County Aug. 27, 2012) (“Cuomo”) (ordering discovery of SMS data because plaintiff “made reference to his face book account” during his deposition). In fact, some courts have dismissed a request, without prejudice, pending forthcoming deposition testimony. See, e.g., Fawcett, at *13; Heins, at 2.
Apart from deposition testimony, other evidence, such as emails, may provide the factual predicate for compelling SMS data. In Glazer, the plaintiff alleged that she had been retaliated against because she complained about discrimination against non-African-Americans and claimed she was terminated because of her religion. Glazer, at *1. The defendants sought to compel LivePerson, a web-based consulting site, to produce transcripts of the plaintiff’s chats with psychics. The defendants were able to produce emails (which the plaintiff had sent to herself) containing excerpts of certain chats concerning the plaintiff’s work performance, relationships with co-workers, treatment by the defendants, and personal beliefs about African-Americans. Although the court did not compel LivePerson to produce the transcripts, it did order the plaintiff to open a new LivePerson account so that she could access her old chats and produce all LivePerson chats to the defendants. Id. at **1, 12-13.
A party seeking SMS data without an outside source on which to lay the foundation for a broad SMS discovery request alternatively may be supported in its argument if the opposing party claims loss of enjoyment of life. In Walter, for example, the defendants based their request on the plaintiff’s contention that she was in constant pain and that her overall quality of life and sense of well-being had been severely impacted as a result of a motor vehicle accident. Walter, at *4. The court compelled the plaintiff to provide authorizations so that the defendants could access her account. Id. at *3. Although courts are worried about “fishing expeditions,” a few have granted full access when there is a loss of enjoyment of life claim. Id. See also Cuomo, at 3 (ordering plaintiff, who claimed that he was unable to play sports, dance or do other activities after knee surgery, to provide defendants with an authorization for access to his Facebook account). Still, this form of relief seems to be an anomaly, with most courts favoring in-camera review or requiring a narrowly tailored request rather than unfettered access to a SMS account or similar data. See, e.g., Bianco, at *1; Reid, at *2; Winchell, at 421-25; Kregg, at 1290; Loporcaro v. City of New York, 2012 WL 1231021, at *8 (Sup. Ct. Richmond County Apr. 9, 2012). See also AllianceBernstein L.P. v. Atha, 100 A.D.3d 499, 500 (1st Dep’t 2012) (in-camera review of iPhone).
It is no longer a secret that SMS data is a rich source of probative information for use in litigation. Facebook and other social media have become an increasingly integrated part of everyday life – memorializing daily activities, mental processes, and emotional states. At the outset of a case, litigants would be well-served to think strategically about whether and how to best seek discovery of such sources of data. Parties seeking discovery of SMS data should actively steer the discovery process, specifically requesting SMS data that is narrowly tailored to the dispute and predicated on one or more of the grounds articulated in the existing jurisprudence. Attorneys might consider, for example, posing questions concerning the use of SMS at party depositions in order to create a factual predicate for a motion to compel SMS data should a discovery dispute arise. As social media data becomes increasingly relevant to cases outside the personal injury and employment contexts, we can expect further guidance from the courts concerning the appropriate scope of, and approach to, electronic discovery from those sources.
Brendan M. Schulman is E-Discovery Counsel at Kramer Levin Naftalis & Frankel LLP. He advises clients on the preservation, collection, processing, review and production of electronic information, with an emphasis on early case assessment and other cost-effective and defensible strategies. Samantha V. Ettari, an Associate, focuses primarily on white collar criminal and regulatory defense, as well as general commercial litigation, with an emphasis on real estate, complex contract disputes, and bankruptcy litigation. Lisa Neunder, an Associate, focuses primarily on general employment and general commercial litigation.