Trial Magazine

As the use and types of social media continue to increase, we can expect that our clients’ social media will continue to become a bigger target in discovery for defendants in personal injury litigation. The undue burdens imposed by this type of discovery can be especially harmful in consolidated drug and device litigations when there can be hundreds or even thousands of plaintiffs.

While it has the potential to damage the merits of an individual case, social media discovery is, with very few exceptions, nothing more than a fishing expedition that can be both unduly burdensome and disproportionate in the mass tort context. While defendants may claim that they seek impeachment and other relevant evidence, it serves a greater purpose to them: to bog down the discovery process and burden plaintiffs with the significant time and expense associated with gathering, reviewing, and producing this type of discovery. And it distracts and impedes plaintiffs as they work to meet their burden.

Because defendants will continue to seek this evidence and become more sophisticated in their tactics, plaintiff attorneys need to take notice and be prepared to respond effectively. To do so, you must fully understand the potential scope of this type of discovery and how it can bog down a drug or device litigation. Here are some ways to prepare for and bolster what will eventually boil down to a proportionality argument as you defend against this type of abusive discovery.

What Is Social Media Discovery, and What Does It Require?

When defendants ask for a plaintiff’s social media in a drug or device case, it is typically during negotiations regarding a plaintiff profile form or plaintiff fact sheet, and the request is usually very broad. They typically do not just ask for recent Facebook posts—rather, the request may ask that you search all your client’s social media, personal email, messaging accounts, and text messages for responsive information.

Depending on your client, the list of current and former accounts can be voluminous and may include Facebook, Instagram, LinkedIn, MySpace, Pinterest, Reddit, Snapchat, TikTok, Twitter, and WhatsApp, among others. It may also require your clients to search all their devices. To get a better idea of the full breadth of discovery that a court could order, look at the relevant order entered in the Taxotere MDL, which was one of the first to address the plaintiffs’ ESI production.¹

The volume of information your client has generated through social media and other electronic communications—and that you will have to gather and search—can grow exponentially depending on the relevant time frame the defendant seeks.

Accordingly, gathering, reviewing, and producing this discovery can prove to be a massive, expensive, and time-consuming undertaking that will likely produce very little of value to the defendant on the back end. If ordered to gather, review, and produce some or all this type of evidence by a court, you will be required to take the following steps.

First, identify what social media accounts, email accounts, and messenger applications your client uses. Then ask your client for correct login information for each of the accounts. This is no small task, as clients may not remember all the accounts they have and their account usernames and passwords. But even if they do, they may be reluctant to give out that information without significant coaxing. Oftentimes you must explain that if they do not comply with discovery requests and provide access to the information, their case could be in jeopardy and even subject to dismissal.

Once you have the proper account information, you’ll need to hire a vendor that specializes in “scraping” social media, email, and messages. The vendor will then put that information into a searchable, reviewable format. Scraping cannot simply be done with the click of a button, and the method required to pull information is different for each social media platform. With social media companies constantly updating their platforms, it also is not uncommon for the scraping method to change mid-litigation. Once the information has been scraped, attorneys representing the client must review it for responsiveness and privilege before it can be produced.

How It Can Hurt Your Case

While defendants claim they seek social media discovery for impeachment and other purposes, such as notice and statute of limitations, that type of evidence is very rarely found through this type of discovery. Do not be fooled: The more time plaintiffs spend reviewing irrelevant social media, the less time they have to focus on a defendant’s conduct in discovery. Defendants also try to use discovery deficiencies as a pathway to dismissal. As a result, many large drug and device companies now consistently push hard to exhaust plaintiffs with this type of discovery.

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The primary way that social media discovery can hurt an individual case and a consolidated litigation is the cost to gather, review, and produce this type of discovery.

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Cost. The primary way that social media discovery can hurt an individual case and a consolidated litigation is the cost to gather, review, and produce this type of discovery. This includes both the expense for scraping a client’s social media—usually paid to a vendor who does that work—and the attorney time required to review that discovery for responsiveness and privilege.

As recent litigations demonstrate, the cost to simply scrape social media evidence and prepare it for attorney review currently ranges, on average, from $3,000 to $6,000 per client. These costs can escalate quickly, especially in a litigation involving tens of thousands of claimants. These costs are not flat fee and rise and fall based on the volume of responsive information. The only way to reduce them is to limit the types of accounts and time frames subject to search.

For example, more than 20,000 cases are pending in the Gilead Tenofovir cases consolidated in California state court.² In that litigation, the court ultimately ordered social media discovery for approximately 400 plaintiffs—2% of the entire litigation. However, at an average of about $4,500 per client, the cost to gather this evidence exceeded $1.8 million. Fortunately, that court also eventually ordered Gilead to bear some of that cost.

Time. Reviewing this vast volume of social media discovery takes time—it could be as much as several full days for every client, which can add up in a case involving thousands of people. In a multidistrict or consolidated litigation, the plaintiffs’ steering committee must educate individual firms on how to produce this discovery and ensure they comply. If individual attorneys do not fulfill their social media obligations, that will fall back on leadership who then must answer to the court. The defendant will argue for more social media discovery and will seek to block other discovery under the guise of plaintiff noncompliance.

To the extent that leadership is successful, at least initially, in limiting the number of plaintiffs in a consolidated drug or device litigation who are subject to social media discovery, do not rest easy. Defendants are likely to continue to petition the court for additional plaintiffs to produce their social media.

Deadlines and deficiency letters. Defendants likely will advocate for short production deadlines and then ask for an order to show cause if a plaintiff does not timely produce social media discovery or provides incomplete discovery. If not cured, this process can result in dismissal of a plaintiff’s case.

The Inevitable Proportionality Battle

Ultimately, the scope of social media that you will have to gather, review, and produce turns on proportionality—whether the social media production is proportionate to the needs of the case or whether it is unduly burdensome.³

Argue that this type of discovery is likely to be costly and have very little bearing, if any, on the merits of the case. To further limit the potential damage of social media discovery and strengthen the proportionality argument that you will inevitably need to make (sometimes repeatedly), here are several steps you can take.

Client education. It’s good practice to alert clients to the possibility that their social media, emails, and text messages will be subject to discovery. My firm tells clients not to communicate about their injuries or their lawsuit with others, but they do not always follow those instructions. Letting clients know early that even private messages could fall into the hands of defendants is critical in preventing damaging statements from being made in the first place.

My firm typically sends out a “Social Media Guidelines” letter to new clients once the fee agreement is signed and returned that outlines what clients can expect and how they should manage their social media and online presence during litigation. That includes limiting the types of social media they use; asking them not to open new accounts; having them change the security on existing accounts from public to private; and encouraging them not to discuss their case, their injuries, or any related information with anyone other than their attorneys.

The start of the attorney-client relationship is also a good opportunity to ask your clients for a list of the platforms they use and their logins. This allows you to proactively identify any potential issues. Some clients may feel intimidated or view it as an invasion of privacy and be inclined to delete potentially responsive information. If the defendants discover this, you could have a spoliation issue and potentially a negative inference instruction on your hands. Advise your client not to delete anything.

Experts. While most lawyers and judges probably use some form of social media, this does not automatically qualify them to prospectively evaluate the proportionality of social media discovery—or the likely volume of responsive information that will be generated by a set of search terms. This is particularly true in a large drug and device litigation.

It is highly advisable, especially in a mass tort litigation, that you identify a plaintiff lawyer in the litigation who is skilled at discovery of electronically stored information (ESI). Defendants do and will have such a lawyer dedicated solely to negotiating, briefing, and arguing ESI issues.

Also consider hiring a nonlawyer expert in social media production. A vendor will be needed anyway to scrape this information and is a great source for such an expert. It’s better to get the expert on board early—not after you’re stuck with an adverse and potentially uninformed court order.

This expert can educate you on the various issues that could arise, help you articulate and even explain to a judge the proportionality argument to limit the amount of discovery ordered, and identify appropriate and inappropriate search terms. This expert also may be able to help you generate a report showing the likely volume of information that would result from certain search terms. Establish a relationship early with the expert vendor, ask the expert to educate you, and bring the expert with you to the hearings in which the nature and extent of this discovery is being argued and decided.

Another option, depending on the judge, is to consider hiring an ESI expert for the court. One potential advantage here is the judge will be able to contact and consult with this expert directly without the issue of ex parte communications. And if both sides agree to the expert, the court may find that expert more trustworthy as well.

Negotiating the ESI protocol. Recently, defendants have tried to negotiate ESI protocols to apply to both defendants and plaintiffs. When defendants refer to plaintiffs’ ESI, they are talking about social media discovery. In general, try to negotiate an ESI protocol that does not apply to plaintiffs. At a minimum, try to separate the defendant’s discovery obligations from the plaintiff’s, as the types and volume of information likely will be different and also need to be handled differently.

But if defendants insist, consult your expert vendor about the manner of production to help you limit costs. Otherwise, the defendants may discreetly weaponize the ESI protocol against you before they even ask for social media discovery without you knowing it.

Deadlines. Social media discovery can be time-consuming and result in delays. This is especially true if a platform changes, rendering a scraping tool obsolete overnight. Argue for as long a time as possible to produce social media discovery to account for these likely technological challenges. How much time you need varies based on the agreed scope, time lines, and number of plaintiffs in the litigation.

And do your best to separate the discovery process from the order to show cause process. In other words, do everything you can to avoid a process whereby the defendant can inch individual cases toward dismissal if delays in production or deficiencies occur.

Counter Defense Attacks

In general, it may be difficult to convince a court that defendants are not entitled to this type of discovery. Argue that social media discovery in prior litigations has been largely irrelevant to the issue that the defendants will identify. Simultaneously, use other tactics to limit the potential scope of this discovery. To accomplish this, focus on the nature and extent of social media discovery that plaintiffs will have to provide—and its proportionality and cost.

Limit the number of cases. In a mass tort, never agree to produce social media in all cases, if for no other reason than that it could cost millions of dollars and delay your litigation by months or more. As discussed earlier, it could also lead to cases being dismissed.

The best place to start is to negotiate the scope of social media discovery within the context of a bellwether trial case management order. Try to limit social media discovery to just those cases and argue that defendants do not need to turn over every stone in every case, especially as most cases will not be tried. In addition, social media discovery typically will not influence the settlement value of a case—defendants don’t tend to look at social media as part of a drug or device case settlement program.

If that does not work, see if the defendant will agree to limit social media discovery to a smaller pool of cases out of which the bellwether cases will be chosen. This will also limit the risk of the order to show cause process that can result in dismissal if a plaintiff profile form is not submitted timely or is incomplete.

Limit the types of discovery. Another way to prospectively limit the burden is to limit the types of ESI subject to production. Look at the demographics of the plaintiffs in the litigation: If the plaintiffs are generally older, they likely communicate most often via email—so you might want to limit email production in exchange for something else. If the plaintiffs are younger (and especially if they are of a different demographic than you), you must identify what social media they typically use.

If the defense seeks production of your clients’ text messages or similar types of communications, counter by insisting on getting this discovery from their sales representatives and key custodians. Typically, production associated with those individuals is limited to email, and defendants will not want to go beyond that.

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Get defendants to drop as many search terms as you can by giving examples of the irrelevant types of information they would generate.

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Search terms. Search terms are the biggest danger zone and the issue that plaintiff attorneys so often mishandle. Don’t assume that because you have negotiated search terms in discovery directed at a defendant that this qualifies you to identify search terms for your clients’ social media.

I recommend working with a vendor to limit the search terms and keep them specific. Generic terms like “cancer” may seem logical in a case involving cancer, but they are likely to generate a large volume of irrelevant information. To help you demonstrate this, generate sample hit reports, and use those in your meet and confer with the defendants. Get defendants to drop as many search terms as you can by giving examples of the irrelevant types of information they would generate.

Once you’ve hit a wall with defendants, get the court to further limit the terms. Your expert can explain the likely unintended consequences of the defendants’ list of terms to the court far better than you can, so bring them with you to the hearing. If the terms will generate 30,000 pages per plaintiff, the judge may reconsider the defense’s request.

Phased production. Another great suggestion for limiting this discovery is to agree to phased production. In other words, negotiate with defendants that you will produce responsive material found on only one type of account for all your clients and, if there is nothing responsive for a particular client, then the obligation for that client ends there.

Cost sharing. One of the best ways to limit the defendants in their quest to bog down a litigation is to make them share in the production expense. To the extent the defendants seek social media discovery beyond a very limited set of bellwether plaintiffs, argue that the cost of production should be shifted to the defendants.

This can be particularly helpful with aggressive defendants who refuse to narrow requests and are willing to seek court intervention. In this instance, tell defense counsel that if they insist on such a broad scope, you will oppose it and, in the alternative, request that the court shift the cost of production to the defendant. That will quickly change the defendant’s view on what is necessary and what is not. This proposal may seem like a form of concession but keep it in mind and don’t be afraid to raise it if the judge does not see the defendants’ unreasonable requests as unduly burdensome.

Social media discovery is a new and growing area of litigation that is likely here to stay. Many lawyers have not dealt with it before and may not fully appreciate the dangers that come with it. Spotting the issue and limiting the damage from day one is half the battle.

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Edward (Ned) B. Mulligan V is a partner at Cohen & Malad in Indianapolis and can be reached at nmulligan@cohenandmalad.com.

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Notes

1. See In re Taxotere (Docetaxel) Prods. Liab. Litig., MDL No. 2740, Pretrial Order No. 71 Governing Plaintiffs’ Responsibilities Relevant to ESI (E.D. La. Dec. 15, 2017).
2. See Gilead Tenofovir Cases, Cal. Judicial Council Coordinated Proceeding No. 5043 (Cal. Super. Ct.).
3. For more on proportionality, see George S. Bellas & Marcus Neil Bozeman, Stopping the Proportionality Distortion, Trial, Oct. 2021, at 52.