In a recent decision, a Federal District Court in Michigan ruled that while social media is clearly discoverable, there must be some showing of relevance before the court moves to compel full production of a litigant’s Facebook account. In Tompkins v. Detroit Metropolitan Airport (January 2012), the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who sought full access to her Facebook account in the course of discovery. The court noted that while “material posted on a ‘private’ Facebook page…is generally not privileged, nor is it protected by common law or civil law notions of privacy,” an opposing party does not “have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”
However, far from completely closing the door on full disclosure of social media accounts, the court notes that:
“If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”
This case illustrates that any solution purporting to support eDiscovery for social media must have robust public search and collection capabilities. This means more than merely one-off screen scrapes but instead an ability to search, identify and capture up to millions of social media posts on a highly automated and scalable basis, and the ability to find all information that is publicly available but may not be readily apparent.
For instance, X1 Social Discovery has the ability to find an individual’s publicly available content and to collect it in an automated fashion in native format with all available metadata intact to enable systematic and scalable search, review, tagging and analysis. We heard from one major law firm that screen captures of a single public Facebook took several hours, with the resulting images not searchable or organized into a case-centric workflow. Now with X1 Social Discovery, they are able to accomplish this full capture in seconds.
In another recent case involving publicly available Facebook evidence, Bradley v. State of Texas (February 2012), a jury convicted defendant Michael Bradley for armed robbery. The police arrested him several days after the offense when the victim located Bradley’s Facebook page after a tip. There he found, among other things, a picture of Michael Bradley posing with two guns—including one that looked remarkably similar to the gun stolen from the victim during the robbery.
In its opinion denying Bradley’s appeal, the Texas appellate court pointedly noted that “Vast online photo databases—like Facebook—and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects.”
This week we are releasing X1 Social Discovery v2.4. This upgrade includes enhanced features to enable a thorough and comprehensive collection of publicly available information on Facebook, Twitter and the web to better assist legal and investigative professionals to make the requisite showings for the production of social media evidence in civil discovery or to establish probable cause to arrest a suspect.
Next Gen eDiscovery Law & Tech Blog 