Posted: December 11, 2012
A federal court in California recently confirmed what lawyers and litigants should have known already — that discovery aimed at social networking sites is subject to the same restrictions as discovery aimed at more traditional sources of information. In Mailhoit v. Home Depot U.S.A., Inc., the court denied the defendant’s motion to compel broadly-drafted discovery requests aimed at status updates, messages and pictures on Facebook. In particular, the defendant sought to recover (1) profiles, postings, or messages (including status updates and wall postings) from social networking sites that reveal any emotion, feeling, or mental state of the plaintiff; (2) third party communications to the plaintiff that place her own communications in context; (3) all social networking communications between the plaintiff and any current or former employee of the defendant; and (4) pictures of the plaintiff taken during the relevant time frame and posted on the plaintiff’s profile or tagged. At her deposition, the plaintiff testified that she suffers from post traumatic stress disorder, depression, and isolation as a result of the defendant’s alleged wrongdoing, and the defendant argued that it was entitled to the requested information because the plaintiff put her mental and emotional state at issue.
The court recognized that social networking site content may be subject to discovery under Federal Rule of Civil Procedure 34 but held that the Federal Rules do NOT grant a requesting party a generalized right to rummage at will through information available on social networking sites. Instead, as with other types of discovery, the Federal Rules require “a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” The court held that the large majority of the defendant’s requests failed this test and denied the motion to compel with respect to most of the requests. With respect to the first category, the court determined that the extremely broad description of material did not satisfy Rule 34’s requirement of reasonable particularity and that it was vague and overbroad. The second category is entirely predicated on the first and fails for similar reasons. With respect to the fourth category, the court held that the defendant failed to make the threshold showing that every picture taken of the plaintiff in the relevant period would be considered relevant under Rule 26 or would lead to admissible evidence.
In reaching its conclusions, the court in Mailhoit specifically rejected a holding by an Indiana federal court that similar requests were discoverable. See EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D 430 (S.D. Ind. 2010). Categories 1, 2, and 4 requested by the defendant in Mailhoit were closely modeled after three categories that the court in Simply Storage ordered produced. The Simply Storage court recognized that the requests were not “drawn . . . with the precision litigants and their counsel typically seek” but nonetheless ordered that responsive documents be produced. The court in Mailhoit criticized the Simply Storage court for allowing the extremely broad discovery.
As with so many other areas of the law, it’s important to remember that, just because it’s happening on the Internet doesn’t mean that a different set of rules applies than are applicable to non-Internet situations. Just as with more traditional discovery, the “rules do not allow a requesting party to engage in the proverbial fishing expedition.” See Tomkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).
For more information, contact Lindsey Mann.