Social Media Discovery

In a case arising out of a motor vehicle accident, the defendant issued discovery requests seeking, among other things, plaintiff’s online postings related to any type of psychical or athletic activities since the accident date on all social media websites (e.g. Facebook, Instagram, Twitter). Plaintiff objected to the discovery requests on the grounds that it was overly broad. Defendant filed a motion to compel the social media postings, arguing first that plaintiff failed to timely object to the discovery at issue, and second that the information requested was specifically tailored and relevant to plaintiff’s claim for damages. In response, plaintiff maintained that the discovery would require the production of large amounts of irrelevant information, and thus the request was excessive.

In general, social media content is neither privileged nor protected by any right of privacy and is discoverable. However, such a discovery request must still be tailored so that it appears intended to lead to the discovery of admissible evidence. In ruling on Defendant’s motion to compel, United States Magistrate Judge Erin Wilder-Doomes acknowledged that plaintiff failed to timely respond to the discovery requests, thus waiving any objections; but held that Defendant’s social media requests, while relevant, were overbroad. With respect to Defendant’s social media interrogatory, the court limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts.” In regards to Defendant’s request for production of documents, the court limited the request “to all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.” Plaintiff was further ordered to download all historical data available from the social media accounts to review for responsive information. If a particular social media account does not allow for download and review, the court instructed Plaintiff to provide responses that include a description of the steps taken to locate and review the responsive information within any social media account.

Scott v. United States Postal Serv.