Social media’s impact on the law is a bit like the Wild Wild West. Because social media is still in its infancy, there is little precedent to provide courts with direction on how to uniformly apply existing law to the social media landscape. As a result, courts are handing down varying decisions as to the extent evidence on social media is discoverable and admissible in court.
Most recently, the Supreme Court of New York reversed a trial court’s order providing for broad discovery regarding Facebook and other social media sites.In Abrams v Pecile, 2011 NY Slip Op 03108 (April 19, 2011), the plaintiff sued for conversion (theft) and intentional infliction of emotional distress alleging that a former employee of plaintiff’s husband retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleged that the defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.
While the decision was silent on the specifics, the decision inferred that the trial court granted plaintiff’s request to discover broad information contained on defendant’s Facebook and other social networking profiles. In overturning the trial court’s order, the appellate court reasoned:
[the] Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant’s demand for access to plaintiff’s social networking accounts, no showing has been made that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Vyas v Campbell, 4 AD3d 417, 418 [internal quotation marks and citation omitted]; see also McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 ). Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff’s hard drive in order to defeat plaintiff’s conversion claim. Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).
The court also ruled that “[d]iscovery of materials concerning plaintiff’s family and her husband’s business should be obtained through nonparty discovery[,]” and that the “remaining discovery demands are either overbroad or irrelevant.” Unfortunately, the court did not provide and information about the type of content request in plaintiff’s discovery requests – or make specific findings about the admissibility of particular evidence.
So what is the take away from this decision? At the very least, discovery requests directed toward content on social media sites should not be a fishing expedition. Like other means of discovery, courts are not inclined to allow requests that seek “All Facebook messages in defendant’s possession,” or “All photographs on plaintiff’s myspace page.” Instead, requests should seek only information that is relevant to the specific claims and defenses in the case, such as “All Facebook messages relating to the car accident alleged in paragraph 13 of plaintiff’s complaint.”
Drafting narrowly tailored discovery requests may help to provide a more certainty until the dust (law) settles in the Wild Wild West.
CEO & Founder of Social Media Law & Order
Ethan teaches social media CLE programs to lawyers, law firms, and legal associations. He can design a one hour, half day, or full day workshop at your office, firm retreat, or conference that will be approved for both ethics and general CLE credit. Learn more about how Ethan can be your social media law keynote speaker at your next conference on topics related to social media and the law.