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Facebook’s Easy Button: Tipping the Scales of Proportionality

Thursday, June 16, 2016  
Posted by: Jason Krause
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Social media is discoverable and is an increasingly vital piece of evidence in modern litigation. In one recent case, the court wrestled with how to determine if discovery of social media is proportional under the recently amended Federal Rules of Civil Procedure. Though the court may have found a way to settle the dispute, e-discovery experts say there is no universal solution.

The case Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. Apr. 21, 2016) involves a personal injury action in which the Plaintiff Alecia Rhone was struck by a truck owned by Schneider National Carriers. The Plaintiff asserts that she sustained “severe physical injuries” as a result of the accident. The Defendants made a broad request for discovery of Rhone’s social media, hoping to uncover evidence that her injuries were not as severe or as debilitating as claimed.

The dispute revolves around the question of whether such a request is too broad and burdensome. “In the last year since the rule was amended, courts have been determining what is reasonable and proportional in discovery,” says Julie Anne Halter, a partner in our Seattle office K&L Gates LLP. “In this case the court found an alternative route to get information about social media which was relatively easy and painless. Unfortunately, it’s not always easy to get that kind of solution.”

In order to limit ever-increasing discovery costs, Federal Rules of Civil Procedure 26(b)(1) was rewritten to limit discovery to that which is “proportional to the needs of the case” and provided five factors for courts to consider. Of course, proportionality in discovery under the Federal Rules is not new. The old rule 26(b)(2)(C)(iii) was clear that a court could limit discovery when the burden outweighed benefit. However, new Rule 26(b)(1), implemented by the December 1, 2015 amendments, takes the factors in these old requirements and puts them at the heart of any discussion about the scope of discovery.

In Rhone, Schneider requested copies of any posting made by Plaintiff on Twitter, Facebook or any other social media site, including, “Copies of any and all photographs and/or videos of Plaintiff posted by Plaintiff on Twitter, Facebook or any other social media website since the date of the accident.” The plaintiff argued that such a request was overbroad, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

Finding a Third Way

In a number of cases, judges have come down against parties which make broad and vague requests for social media. For example, in Mailhoit v. Home Depot U.S.A, Inc. Home Depot argued unsuccessfully that it should be able to review all of the defendant’s Facebook and LinkedIn accounts to verify her claims of isolation and loss of friendship following an injury. “This is an extremely gray area,” says Michael Barba, a Managing Partner with BDO Consulting. “Limiting discovery to one or two social media sites based on their popularity or known visits may not provide all the information that is relevant in the case.  It is highly improbable to identify all of the places a person has been online and all of the place they are posting information to without access to their actual systems.”

In order to settle this dispute, the court has ordered the plaintiff to obtain and deliver a “Download Your Info” report from her Facebook account from the date of the accident to the present. The defendants claim they have already uncovered relevant social media posts involving the plaintiff engaging in physical activity such as dancing. The court hopes this report will corroborate or refute the defendant’s claims. “One important factor for the court was that this information was easy to obtain,” says Halter.

Halter says that the “Download Your Info” report was necessary in part because during a deposition the plaintiff’s lawyer had, “improperly instructed his client not to answer questions.” Without testimony from the plaintiff, the court was unable to establish basic information about how active she was on social media. “It seems that one of the troublesome aspects of this case was the aggressive deposition tactics by the party for the plaintiff,” says Halter.

The report should allow the parties to establish what social media posts the plaintiff made on Facebook and if and when posts were deleted. Most importantly, it should help the court establish if the posts uncovered by the defendants are relevant to the litigation. However, experts warn that getting important information, including metadata and images from social media posts is often a difficult or impossible task. “Social media companies have been very much on the side of user privacy and are not forthcoming with law enforcement,” says Howard Williamson, Senior Vice President and Executive Director with X1 Social Discovery.

Williamson says that even if social media providers deliver content in response to litigation demands, it often comes in formats that are difficult to use. For example, he says one social media provider returned documents in response to a request in the form of almost 50,000 PDFs, which were almost impossible to review. “Social media providers want people on their platforms, but they don’t want to give up information,” he says. “They act like the data is private, even after its been posted in a public place.”

In many ways, Rhone v. Schneider is a very typical dispute over social media evidence. When a case begins, parties need to identify if there might be discoverable evidence on their opponent’s social media pages. That often means doing casual searches, which can turn up potentially relevant information. However, those casual searches are not often admissible in court, which is why the courts need to step in an determine if social media will be relevant to the case. “Ideally, you want to subpoena someone’s Internet Service Provider to obtain information on their user activity which would include dates, times, login information and sites visited in order to get an understanding of their activity.” says Barba. “But that is not always feasible, so you have to find out what you can through other means.”

However, e-discovery experts say that that courts are just beginning to wrestle with these issues. “I will say that not all judges are still treating social media evidence as the equivalent of magic, but instead asking the basic legal questions that they should have been all along,” says Mike Simon, attorney and e-discovery consultant with Seventh Samurai in Boston.

Courts will increasingly be asked to find new ways to authenticate or validate relevant sources of information on social media. Obtaining information from social media vendors is not always viable, but if courts can compel litigants to provide the information, it may help settle more such disputes early in the process. “This ruling might be applicable in all cases, but it is one indication of how the courts are going to use the amended proportionality rules in social media disputes,” says Halter.






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