Electronic Discovery of Social Networking Sites

Joseph Cucco, Albany Government Law Review

Social networking sites, such as Facebook, Twitter, LinkedIn and MySpace, have become immensely popular ways to share information.  Hundreds of millions of people use the sites on a regular basis, uploading photos and other information to their user profiles.[1]  Social networking sites have opened up new ways of staying in touch with friends and family, or letting the world know about one’s likes and dislikes.[2]  They have also raised new legal issues regarding how much of this information is discoverable and what limits should be placed on data acquired from social networking sites.[3]

On social networking sites, members can choose which biographical data to include, decide which of their contacts can see it, and communicate with other users via blog postings, status updates, photo albums, site messaging and chat features.[4]  The sites store this information on their own servers.  The fact that the information is stored remotely rather than on the user’s home computer has led to questions about whether information stored on a third-party server such as Facebook is subject to federal discovery rules.[5]

Lawmakers and courts have scrambled to keep pace with the new technology. The Federal Rules of Civil Procedure were amended in 2006 to impose a duty to disclose “electronically stored information” which a party “may use to support its claims or defenses.”[6]  Rule 34 was amended to include in the definition of “electronically stored information” that is subject to requests for production, “data or data compilations—stored in any medium from which information can be obtained”.[7]  This means that information which users may have thought would stay private is vulnerable to exposure through the discovery process if the user becomes involved in litigation.[8]  As a result, social networking sites have become a fertile resource for litigators gathering information on parties, expert and lay witnesses, potential jurors, and even opposing counsel.[9]

Many users of social networking sites believe that their information is protected from exposure because such sites typically have privacy controls that allow users to set access to their accounts.[10]  However, users’ privacy settings do not protect them from disclosure of information subject to a valid subpoena or discovery request, because the information constitutes “electronically stored information” under the Federal Rules of Civil Procedure.[11]  If the information contained in a litigant’s Facebook or other social networking pages is relevant to allegations contained in the lawsuit, the user must provide it.[12]

Social networking site users may often have anywhere from dozens to thousands of contacts nominally called “friends,” the vast majority of whom are, in fact, total strangers.[13]  This blurring of the distinction between friends and strangers arguably changes concepts relative to what constitutes a reasonable expectation of privacy.  In a recent New York personal injury case, the court granted a motion to compel by a defendant who had requested the plaintiff’s Facebook and MySpace content, both current and deleted.[14]  The defendant maintained that the plaintiff had placed information and pictures on the social networking sites which were inconsistent with her claim that her injuries resulted in a loss of enjoyment of life.[15]  In return, the plaintiff argued that being forced to turn over her profile information would violate her Fourth Amendment right to privacy.[16]  The court noted the U. S. Supreme Court’s decision in Katz v. United States that privacy “is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”[17]  The court in Romano found there was no reasonable expectation of privacy on a social networking site, particularly where the plaintiff had chosen to make the information public herself despite limiting its access to a select few.[18]

Another more troubling issue arises when a party requests production of documents that the opposing side does not have access to, but is nonetheless under a duty to preserve and produce under anti-spoliation rules.  Under the Federal Rules of Civil Procedure, a party can be sanctioned for failure to comply with an order compelling disclosure or discovery.[19]  Allegations of spoliation for failure to preserve evidence that is reasonably expected to be discoverable can reach back to encompass the time period even before litigation is filed.[20]  This means that, theoretically, a court could impose sanctions on a party for failing to produce evidence which is stored on a social networking site’s servers and storage devices, even though it is not within the direct control of the party, and even when the party has long since closed his or her account on the site.[21]  At least one court has indicated, in dicta, that a party may face sanctions under such circumstances.[22]  In Mackelprang v. Fid. Nat’l Title Agency of Nev., Inc., the plaintiff’s MySpace emails were subpoenaed by the defendant in a sexual harassment case.[23]  Although the defendant’s discovery request was denied on relevance grounds, the court stated that if the plaintiff were served with requests to produce emails which were relevant and discoverable, and the plaintiff wrongfully and in bad faith failed to comply, that denial could be grounds for imposing sanctions.[24]

Other issues also arise in determining when the duty to preserve potential evidence begins and the rising cost to the responding party of retrieving that information.  In a case brought in federal court for the Southern District of New York, the plaintiff claimed that the evidence needed to prove her gender discrimination claim was stored on the employer’s computer system in the form of emails on backup tapes.[25]  The parties were ordered to share the costs of restoring the backup tapes.[26]  When some tapes were found to be missing, the plaintiff sought sanctions against defendant for failure to preserve the evidence in anticipation of litigation.[27]  The court held that defendant’s failure to preserve the emails, some dating as far back as four months before plaintiff’s complaint was filed with the Equal Employment Opportunity Commission, was negligent “and possibly reckless.”[28]

The defendant objected on the basis that restoring the e-mails would cost at least $175,000.00.[29]  The court then created an analysis for settling disputes about the scope and cost of discovery of electronic data.  Data kept in an accessible format would fall under the usual discovery rules, and the responding party would pay the costs of producing that data.[30]  Cost-shifting would only be considered when electronic data was relatively inaccessible; the responding party would have to restore and produce a small sample of the requested documents to determine their relevance versus the cost involved.[31]  The court then provided a weighted list of factors to be considered in performing the cost-shifting analysis.[32]

The law is somewhat less clear when the subpoena is served not on the individual account holder but on the social networking site itself.[33]  All social networking sites have privacy policies which fall under the Stored Communications Act (“SCA”).[34]  The SCA prohibits “a person or entity providing an electronic communication service to the public” from divulging the contents of any communication stored on the site.[35]  The Act also proscribes “a person or entity providing remote computing service to the public” from divulging to anyone “the contents of any communication which is carried or maintained on that service.”[36]  Exceptions to this prohibition include the intended recipient,[37] the originator of the communication,[38] the National Center for Missing and Exploited Children,[39] law enforcement agencies,[40] and governmental entities.[41]  Civil subpoenas, however, are not included in the list of exceptions.[42]  Because of this, some courts have held that web-based email providers are prohibited from releasing email content pursuant to a civil subpoena.[43]  Whether courts will universally extend this result to include social networking sites remains to be seen.[44]


[1] Shannon Awsumb, Social Networking Sites: The Next E-Discovery Frontier, 27 The Computer & Internet Lawyer 16 (2010).

[2]Michael Goodfried & Martha Dawson, Discovery Of Social Networking Sites, E-Discovery Connection, Dec. 23, 2010, available at http://clients.criticalimpact.com/newsletter/newslettercontentshow1.cfm?contentid=3175&id=474.

[3] Id.

[4] Id.

[5] Derek Witte, Your Opponent Does Not Need a Friend Request to See Your Page: Social Networking Sites and Electronic Discovery, 41 Pacific Law Journal 891 (2009–2010).

[6] Fed. R. Civ. P. 26(a)(1)(A)(ii).

[7] Fed. R Civ. P 34(a)

[8] Witte, supra note 5.

[9] Awsumb, supra note 1.

[10] Witte, supra note 5.

[11] Id.

[12] Id.

[13] Dana L. Fleming & Joseph M. Herlihy, Department: Heads Up: What Happens When the College Rumor Mill Goes Online?: Privacy, Defamation and Online Social Networking Sites, 53 B.B.J. 16 (2009).

[14] Romano v. Steelcase Inc., 2010 NY Slip Op 20388 (N.Y. Sup. Ct. 2010).

[15] Id.

[16] Evan Brown, Privacy on Social Networking Sites is Wishful Thinking, 14 Journal of Internet Law 35 (2011).

[17] Katz v. U.S., 389 U.S. 347, 361 (1967).

[18] See Romano, 2010 NY Slip Op 20388 at *5

[19] Fed. R. Civ. P. 37(a)(3)(A).

[20] WHITE PAPER: Reshaping the Rules of Civil Procedure for the 21st Century, 60 FDCC Quarterly 1 (2010).

[21] Witte, supra note 5.

[22] Id.

[23] Mackelprang v. Fid. Nat’l Title Agency of Nev., Inc., 2007 U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007).

[24] Id.

[25] Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

[32] Id.

[33] Witte, supra note 5.

[34] 18 U.S.C. § 2702–12 (2000).

[35] 18 U.S.C. § 2702 (a)(1).

[36] 18 U.S.C. § 2702 (a)(2).

[37] 18 U.S.C. § 2702 (b)(1).

[38] 18 U.S.C. § 2702 (b)(3).

[39] 18 U.S.C. § 2702 (b)(6).

[40] 18 U.S.C. § 2702 (b)(7).

[41] 18 U.S.C. § 2702 (b)(8).

[42] Witte, supra note 5.

[43] See, e.g., J. T. Shannon Lumber Co. v. Gilco Lumber, Inc., No. 2:07-CV-119, 2008 WL 3833216 (N. D. Miss. 2008).

[44] Witte, supra note 5.

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