Trial Magazine

Preparation and strategy are key to protect your clients from the disclosure of extraneous information.

In-depth discovery requests for plaintiffs’ social media data are becoming increasingly common. Preparation and strategy are key to protect your clients from the disclosure of extraneous information. As early as possible, advise them to change their account settings to private, refrain from posting anything related to their case, and not delete anything that has already been posted to avoid spoliation.

Exercise your power to object. Defense attorneys often overreach with social media requests. Depending on the scope, such as a request for Facebook “raw data,” you likely will be able to argue the request violates Federal Rule of Evidence 403 as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

You also may be able to assert a privacy objection to a social media request if only to preserve the issue for appeal—be sure to check the law in your jurisdiction. Some courts have held that parties do not have a right of privacy in their social media posts, but it remains an open question in others. Privacy objections are especially justified when requests seek account ­passwords, direct messages, chat ­transcripts, or data that would disclose the private ­information of third parties.

Be prepared to make a reasonable production. If the photographs, videos, tweets, or Facebook posts would be discoverable had they been written in a journal or pasted into a photo album, you should be prepared for the judge to find them discoverable here. Producing screenshots of the directly relevant posts will help show your good faith if a dispute arises over more detailed data.

Know the law. Even if you make a good-faith ­production and attempt to negotiate a narrower scope, the defense may still file a motion to compel in hopes of finding damaging character evidence. Some appellate courts have addressed social media discovery, but rulings remain largely at the trial court level, so know your jurisdiction’s standards and plan early.

Stephen G. Lowry is a partner and Madeline E. McNeeley is an associate at Harris Lowry Manton in Savannah, Ga., and Atlanta. They can be reached at steve@hlmlawfirm.com and molly@hlmlawfirm.com.