The Proper Procedure for Facebook Discovery, Part I

facebook-scales-1An individual is involved in a civil lawsuit against someone — a tort suit, an employment discrimination suit, a civil rights suit — and the opposing party requests production of everything in his or her Facebook account during discovery. The individual refuses, or produces some material but not others, and the requesting party moves to compel. How should the court respond?

This situation is coming up increasingly frequently, and it appears to be confounding in many cases for everyone involved — judges, attorneys, and the parties themselves. Many individual litigants are no doubt surprised by such requests; not being familiar with the ordinary rules of discovery, they may not have realized that suing someone, or being sued, means that all relevant documents must be turned over — which might include every half-witted Facebook post or photograph pertaining to some issue germane to the lawsuit (such as, e.g., the plaintiff’s emotional well-being). Businesses have lived for years with the knowledge that a single wayward email from the CEO can sink a lawsuit; now individuals are experiencing the litigation effects when every decision or even fleeting thought is permanently recorded and archived. And destroying relevant material after the prospect of litigation becomes clear just makes matters worse.

But individual parties are not the only ones surprised by the interaction between civil discovery rules and social networking materials. Judges and attorneys often seem not to know exactly how to categorize the materials on a site like Facebook: is it all one relevant document? Multiple documents? How should the material be produced? Can the material be sought directly from the site via subpoena? Is the material shielded from discovery in any way? This confusion has led in some instances to court orders I’ve criticized as requiring overly broad production of social networking materials, with parties unnecessarily compelled to turn over entire accounts or even, in some cases, passwords to those accounts so opposing counsel can peruse them at will.

By and large most of those cases have been state cases, but federal courts are starting to issue opinions on social networking discovery as well. Over at Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani points to a recent decision from a magistrate judge in the District of Nevada, Thompson v. Autoliv ASP, Inc., No. 09-cv-01375, 2012 U.S. Dist. LEXIS 85143 (D. Nev. June 20, 2012). In Thompson, the judge ordered production of 5 years’ worth of Facebook and MySpace posts, photographs, and other materials to opposing counsel for its review. On a quick read Thompson might appear to fit into the category of overbroad decisions, but, despite an insufficient number of caveats in the opinion for my taste, I don’t believe it is.

I want to spend this post detailing exactly what’s wrong with an order compelling production of an entire social networking account, and why I think courts issuing such orders are going off the rails. Courts ordering production of entire accounts tend to reason as follows: 1) The scope of discovery under Rule 26(b)(1) (or the relevant state equivalent) is broad. 2) There are likely some relevant materials in the account. 3) There is no applicable privilege that shields materials in the account from discovery. 4) Therefore, the entire account must be produced. Some courts, as I mentioned, go a step further than 4), and order instead that the “producing” party must in fact allow opposing counsel to log into the account, using the party’s user name and password, to allow opposing counsel to search for relevant materials him- or herself.

The principal objection I have to such orders is that they violate the fundamental understanding of how civil discovery in the United States is supposed to work. (Other than that, they’re fine!) Document requests under Rule 34 are requests for production of materials, meaning that the producing party must be given the first opportunity to look at all of the documents in its possession and make an initial determination which are relevant and responsive to the request. Obviously there is the opportunity for the producing party to take an unreasonably crabbed view of the scope of the request, or to simply fail to produce responsive documents, but this is not some unintentional defect in the discovery process. Rather, it’s the natural concomitant of the fact that the alternative — allowing outsiders to rummage through a person’s or company’s documents unfettered, looking for the “good stuff” — is too intrusive to justify the added accuracy that might be obtained in civil litigation. Only the police get to do that kind of thing, and only where the stakes are higher: in criminal investigations pursuant to a search warrant issued upon probable cause.

I know what you may be thinking: what about requests for permission to inspect? Although it is not used as often as document requests under Rule 34(a)(1), Rule 34(a)(2) allows a party to request that the responding party “permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” I searched in vain for a case that allowed a party to use a Rule 34(a)(2) request for permission to inspect to search for documents; the typical use, as the text of the rule indicates, is to allow the requesting party to look at some thing or process — specifically designated in advance — that is too big or otherwise impossible to move. Indeed, courts have been particularly careful not to allow parties to use Rule 34(a)(2) as an end-run around the limits on other discovery methods, such as depositions or interrogatories. See Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904 (4th Cir. 1978).

Nor was I able to find any case where, as a sanction, a court ordered a responding party to permit opposing counsel to search its documents, or alternatively to produce all of its documents in a certain location without any determination as to responsiveness. The court can issue a wide range of penalties for discovery violations under Rule 37, and many states do not even itemize the alternatives in their rules, but none of the listed options in Rule 37 requires permitting either opposing parties or court personnel to search for the documents themselves, and I did not find such an order.

Nevertheless, we’ve been getting their equivalent in cases involving discovery of Facebook or Myspace accounts. In Romano v. Steelcase Inc., 30 Misc. 3d 426 (N.Y. Sup. Ct. 2010), a New York trial court ordered that the defendant be given “access” to the plaintiff’s entire Facebook account. In Gallion v. Gallion, No. FA114116955S (Conn. Super. Ct. Sept. 30, 2011), and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. Ct. C.P. Sept. 9, 2010), the court ordered production of the responding party’s username and password to opposing counsel. Several other courts have issued similar orders. And those are just the ones that come to light in written opinions.

I think there are at least three different possible explanations for these decisions. The first is that the courts are getting distracted by the parties’ spurious privilege claims. Of course there is no “Facebook privilege” that shields ordinary Facebook posts from discovery. Tax returns, medical records, and even diaries are discoverable, if relevant, see Faragiano v. Town of Concord, 741 N.Y.S.2d 369, 369 (App. Div. 2002) (diary ordered produced); certainly Facebook materials will not receive greater protection than any of those things. But the fact that they are not shielded does not mean that they must all be produced; the posts or photographs must be relevant and subject to a properly drawn request.

Second, courts may be enticed by the idea that online materials are simply qualitatively different than offline materials, and therefore subconsciously concluding that the ordinary rules of discovery don’t apply, or apply differently. And, it is difficult to avoid the conclusion that many judges may believe that online materials are less worthy of respect than offline materials. For example, several opinions mention the number of people Facebook posts are shared with. It is true that responding parties often claim that social networking materials are extraordinarily sensitive. But courts in rejecting that argument seem to conclude that the nature of the materials makes them producible even in the absence of a determination of relevance — that they do not deserve the same sorts of review paper documents get.

That leads to the final and most intriguing explanation for blanket production orders: the courts are confused (without saying so — perhaps subconsciously confused) by the notion of what constitutes a “document” when it comes to social networking sites. The ordinary rules of discovery require the production of relevant documents — that is, relevance is determined on a document-by-document basis. You typically do not redact portions of a document simply because they are not relevant or responsive to the request, because those portions give context to the rest of the document. But on Facebook, what constitutes a “document”? Is it each individual post? Or is it a person’s entire “Wall” — that is, everything they’ve ever posted, since the current way the site operates is that you see more posts if you keep scrolling down? Court decisions involving websites have typically treated a single web page as a document, which makes sense for static sites. Even blog posts tend to have their own separate web pages, even if that is not how readers initially encounter the posts. On Facebook, if the page is the document, then the entire account is the document that must be reviewed for relevance or irrelevance.

That seems incorrect, but no court has squarely confronted the question. The term “document” is one of those terms whose meaning has previously seemed so obvious that it has never been defined. (There have been arguments about whether various media qualify as documents, so that the federal rules now say the term includes “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations” that are “stored in any medium from which information can be obtained.” But there has not previously been much dispute about where documents begin and end.) Each post is written at a separate time, with a separate list of comments, and is typically devoted to a single, discrete subject that does not carry over into succeeding posts. Although the posts can be viewed together on the user’s “Wall” or “News Feed,” the “Wall” and “News Feed” function more as storage and display areas for posts than as a static document. To the extent courts are requiring production of accounts because they view the account as a single document that is partially relevant, that conclusion may be based on a failure to understand how Facebook and MySpace actually work.

Where does all this leave Thompson v. Autoliv, the most recent addition to this line of cases? The Thompson court ordered delivery of a copy of all Facebook and Myspace materials to opposing counsel. But it’s worth emphasizing that the court did not order production of those materials; rather, the delivery of the copy to opposing counsel was an intermediate step in resolving a dispute over whether all relevant documents had been produced. In Thompson, the plaintiff had already produced some materials, but the defendant insisted there was more, based on its earlier review of the plaintiff’s Facebook and MySpace profiles when they were publicly available. The court ordered the plaintiff to deliver a copy of the materials to defense counsel, who was ordered not to disclose the material to anyone, but only to prepare a list of items withheld that should have been produced. The court then ordered that such material would only be formally produced if the parties voluntarily resolved their dispute or the court resolved it on the motion to compel; the hard drive with the material would then be returned to the plaintiff, and no copy of it could be made. In other words, Thompson is a bit of a special case.

I’ll take up the Thompson decision and others like it, including their potential pitfalls, in my next post.

Cross-posted at the Marquette University Law Faculty Blog.