The Facebook Digital Footprint: Paving Fair and Consistent Pathways to Civil Discovery of Social Media Data
56 Pages Posted: 16 Apr 2013 Last revised: 11 Nov 2014
Date Written: May 4, 2014
Civil discovery of social media data has become a crucial part of many civil cases. But as litigants seize upon the wealth of personal information contained in the non-public portions of social media accounts, some courts afford little protection against broad discovery of all social media content, based on a simplistic notion that social media posts are meant to be shared. In some cases, courts even order users to give their passwords to opposing counsel. At the same time, other courts have taken an overly restrictive view of social media discovery, denying any discovery of privacy-protected data unless the requesting party demonstrates a factual predicate based on publicly available content.
Both of these approaches are flawed. Users of social media must be afforded some protection from overly broad civil discovery. Courts cannot treat all social media data as if it is publicly available, thereby disregarding user-controlled privacy settings. Nor should courts allow those privacy settings to shield otherwise relevant content from discovery.
This article presents a comprehensive framework for reining in overly broad social media discovery. First, courts must appreciate and treat differently the various types of data contained in a social media account. Second, courts must be wary of requiring a party to show a factual predicate based on publicly available social media content as a prerequisite for discovery. Rather, courts should treat social media data like other electronically stored information and require a particularized, narrow request for relevant material that is closely linked to important issues in the litigation. Lastly, notions of privacy must adapt to the changing ways people live their lives online. Privacy protection must be seen on a spectrum, and courts should recognize that granting unfettered access to a huge volume of social media data, in the aggregate, itself may constitute a valid privacy concern.
Keywords: Social Media, Federal Rules of Civil Procedure, Privacy Law, E-Discovery, Evidence, Discovery, Facebook
JEL Classification: K41
Suggested Citation: Suggested Citation