LegalTECH
Social Networking Websites: How to Reap the Benefits and Avoid the Hazards, Part II
John J. Cord & Robert K. Jenner
Discoverability of Electronic Communication Aggressive defense counsel are now seeking discovery
of social networking sites of plaintiffs and witnesses. Formal discovery permits defendants several options to obtain that information.
Written Discovery to Plaintiff Defendants may serve interrogatories requesting that
plaintiff provide his username and log-in code for specific social networking sites, allowing defendant to perform a virtual home invasion. Tese requests should be objected to as overbroad, unduly burdensome,
irrelevant and not
reasonably calculated to lead to the discovery of admissible evidence. Plaintiff should refuse to provide this information except under court order, and should argue that these requests represent a fishing expedition that can only succeed in wholly violating plaintiff ’s personal privacy. Court opinions on the issue are unfortunately divided. Less brazen than requesting usernames and passwords
are requests for production of documents that seek print-outs of the pages from social networking sites. Tese requests may be narrowly tailored to the case, or may be broad. You should lodge objections to these, as well. In one recent Connecticut federal case, Bass v. Miss
Porter’s Sch., the court found that plaintiff ’s entire Facebook account, reduced to 750 pages, was discoverable.1
defendant asked plaintiff to provide Facebook information narrowly related to plaintiff ’s allegations (plaintiff received his Facebook information by subpoena).2
Te plaintiff objected
to those requests as irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.3
Te court C In that case, M Y CM MY CY CMY
ordered production of all 750 pages after an in camera review, ruling that plaintiff ’s decision to provide only 100 pages was too limited. “[P]roduction should not be limited to Plaintiff ’s own determination of what maybe [sic] ‘reasonably calculated to lead to the discovery of admissible evidence.’”4
K Tis is a
1 Bass v. Miss Porter’s Sch., et al., No. 3:08cv1807, 2009 U.S. Dist LEXIS 99916, at *4 (D. Conn. Oct. 27, 2009).
2 Id. at *1-2. 3 Id. at *2. 4 Id.
Trial Reporter / Winter 2010 49
worrisome ruling for plaintiffs, as it permits the very fishing expeditions that the discovery rules are designed to prevent.5 However, a Nevada court reached a contrary conclusion
in Mackelprang v. Fidelity Nat’l Title Agency of Nev., Inc., ruling that the defendant was only entitled to serve “properly limited requests for production of relevant e-mail communications.”6 Tere, plaintiff was not obliged to produce all social networking communications.
Request to Plaintiff to Sign Authorization In light of the reluctance of many social networking
websites to comply with subpoenas, many defendants will attempt to force plaintiff to sign an authorization allowing disclosure of information from the websites.7
Tis is exactly
5 See also the consolidated cases of Beye v. Horizon Blue Cross Blue Shield of N.J., No. 06-5337, (D. N.J. Dec. 26, 2006) and Foley v. Horizon Blue Cross Blue Shield of N.J., No. 06-6219, (D. N.J. Dec. 26, 2006 (court ordered disclosure of e-mails and writings “shared with other people”). QuarterlyTrialReporter-3'5x4'5.pdf 8/7/2007 11:51:23 AM
6 No. 2:06-cv-00788-JCM-GWF, 2007 U.S. Dist. LEXIS 2379, at *25 (D. Nev. Jan. 9, 2007). 7 See “Subpoenas to Hosts of Social Networking Site,” infra.
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