The Intersection Between Social Networking and Litigation
How to Discover Social Media Evidence
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he discovery of social media evidence is a novel concept and courts are left to apply rules and procedures established before the rise of social networking sites. The same rules and procedures apply to the discovery of social media evidence as they do to other forms of evidence. Specifically, a party may seek discovery of relevant, non-privileged information related to a claim or defense in the case. The information sought need only be reasonably calculated to lead to the discovery of admissible evidence, regardless whether that information is ultimately admissible at trial. At the outset of litigation, a practitioner must formulate an effective discovery strategy that will result in obtaining relevant social media evidence. Spoliation or destruction of such evidence is a major concern, since information on a person’s social networking site can easily be altered, deleted, or otherwise not properly preserved. Guidelines regarding the preservation and discovery of social media evidence should be discussed at an early stage of litigation, and a component of the initial discovery conference and report under Federal Rule of Civil Procedure 26(f ) and its state equivalents.142 A comprehensive discovery plan should involve production of social media evidence from both the user and the social networking site. The best approach to obtaining information from a user is to request the information directly from the party through interrogatories143 and requests for production of documents.144 Interrogatories can be used to ask a party to identify the social networking sites to which he or she is subscribed, the duration of each subscription, the amount of time spent on each social networking site, and applicable screen names, user names, and passwords. Requests for production of documents can seek information and documents from a party’s social networking accounts, including information, pictures, videos, blog entries, or statements posted or shared online related to matters at issue in the case.145 Obtaining information from both the user and the social networking site will ensure that all relevant information has been discovered and produced. Serving subpoenas on social networking sites may seem like a good, simple approach to obtaining information from a party’s social networking accounts. However, this approach is unlikely to succeed in light of the SCA and the court’s decision in Crispin. Any subpoena served on a social The same rules and procedures networking site will likely result in a motion to quash and an order granting the same. apply to the discovery of social In order to avoid the problems discussed media evidence as they do to other in Crispin and ensure compliance with forms of evidence. the SCA, a practitioner should secure the consent of the user by obtaining an executed authorization pursuant to Section 2702(b)(3) of the SCA. Such an authorization form can be included with a request for production of documents. If a party fails to execute an authorization form, the requesting party can move the court to compel the user’s consent. As seen by the courts’ decisions in Simply Storage, McMillen, and Romano, most of the
142. Fed. R. Civ. P. 26(f ). 143. See id. at 33. 144. See id. at 34. 145. A party may also use requests for admission or a deposition to obtain information related to social media evidence. These methods, however, may be more effective to obtain facts and testimony necessary to authenticate social media evidence, as discussed more thoroughly below. Reynolds Courts & Media Law Journal
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