Is Social Media Subject to Discovery?

Courts have made it clear that social media may be subject to pre-trial discovery. But judges aren't inclined to grant blanket access to social medial accounts just so litigants can engage in a fishing expedition. Instead they require proof that a site is likely to contain relevant material. Here's an overview of the e-discovery rules and potential challenges that social media presents in a litigation setting.

Discovery Basics

In every lawsuit, there's a period when each party can obtain and examine the other party's information, documents and pre-trial testimony. Throughout this process, the parties must adhere to strict rules. Attorneys gather evidence by taking testimony from witnesses and examining physical evidence and relevant documents.

In the past, documents were primarily paper. But today, they're just as likely to be electronic — such as texts, emails, website pages and social media posts.

People generally use social media to communicate with friends and family. Businesses also use it as a low-cost marketing tool. But what's posted — including tweets, blog posts, pictures, timelines and comments — may come back to haunt users in a lawsuit. (See "Oops! Be Careful How You Use Social Media" below.)

E-Discovery Rules

E-discovery deals with electronically stored information (ESI). This includes data stored on computers, mobile devices, networks, backup systems and other storage media. The Federal Rules of Civil Procedure specifically address ESI and provide protocols for how each party must produce documents. The rules allow for sanctions if parties are uncooperative and also consider ESI subject to subpoenas.

There may be safe harbors when electronic evidence is lost and unrecoverable as a matter of regular business processes. If data loss doesn't occur in the normal course of business, however, the party could be subject to sanctions.

Unique Challenges

Social media presents special legal challenges in discovery. Consider these examples:

• If a company allows its workers to access social media accounts on company computers during their lunch breaks, does the employer have the right to monitor that activity?

• If an employee saves his or her username and password on a company-owned device, does the employer have the legal authority or practical ability to access the employee's social media data?

• Who legally controls data stored on personal devices that are subject to the company's bring-your-own-device policy?

Many people mistakenly believe that social media posts are private. But Facebook's homepage says that the site helps users "connect with friends and the world around you." Even if an individual's posts are private — that is, accessible only to approved contacts — the person is still sharing the posted information with outsiders. As a result, it may be discoverable.

Although courts may not buy the right-to-privacy argument, they generally don't honor blanket requests to access an entire social media account either. The party requesting access to social media content generally must prove a legitimate basis for needing the specific data.

Follow the Rules

In general, social media content is fair game in discovery, but relevance is the name of the game. Attorneys who request specific social media posts are more likely to be granted access by the courts than those who file broad, nonspecific requests. However, as with any form of ESI, everyone must play by federal and state rules of procedure.