District Courts Within the Sixth Circuit Weigh in on Discoverability of Social Media Information, Apply Traditional Discovery Rules to Emerging Forms of Technology.

The way people communicate with one another, share their documents, and store their personal information is changing rapidly.  Letters, filing cabinets, and personal diaries have given way to laptops, tablets, and social media websites.  Facebook alone has 1.15 billion users, who every single day, upload approximately 350 million pictures.  Almost inevitably, a portion of the massive amount of electronically stored information on social media websites has become relevant to state and federal lawsuits, forcing judges to apply traditional rules of discovery to new and emerging forms of technology.

District courts within the Sixth Circuit have recently issued several opinions regarding the discoverability of social media information stored on websites, such as Facebook.  Two cases in particular, Tompkins v. Detroit Metro. Airport and Howell v. Buckeye Ranch, Inc., highlight the district courts' application of traditional rules to disputes involving evidence stored in a social media account.

In Tompkins, the plaintiff filed suit over injuries that she allegedly sustained when she slipped and fell at the Detroit Metropolitan Airport.  Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 387 (E.D. Mich. 2012).  During discovery, the defendant requested that plaintiff sign an authorization releasing all records from her Facebook account, including information that plaintiff had designated as "private"—i.e., not available for viewing by the general public.  Id. at 387–88.  The plaintiff refused to sign the authorization, and the defendant moved to compel.  Id.

In its decision, the Tompkins court recognized that relevant social media information, including that designated as private, is not privileged or otherwise shielded from discovery.  Id. at 388.  Even so, the court provided that the defendant did "not have a generalized right to rummage at will through information that Plaintiff has limited from public view."  Id.  Thus, the court explained that before a party is entitled to receive information on a private social media account, he must first make a "threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence."  Id.  In Tompkins, the court found that the defendant had failed to make this threshold showing and, further, that the defendant's request to search through the plaintiff's entire account was overbroad.  Id. at 388–89.  The court therefore ruled that the defendant was not entitled to obtain the plaintiff's private Facebook information.  Id. at 389.

In Howell, the plaintiff filed an employment discrimination lawsuit, alleging various claims of sexual harassment.  Howell v. Buckeye Ranch, Inc., No. 2:11-cv-1014, 2012 U.S. Dist LEXIS 141368, *1 (S.D. Ohio Oct. 1, 2012).  The plaintiff claimed that as a result of the harassment, she suffered emotional distress and could not regularly update her Facebook page.  Id. at *2.  The defendants requested the plaintiff's usernames and passwords to her social media accounts, claiming that the information was relevant to whether harassment occurred and the plaintiff's emotional state.  Id. at *1–2.  The defendants also presented evidence from the plaintiff's publicly-available Facebook page indicating that she did, in fact, regularly update her account.  Id. at *2.  When the plaintiff refused to provide her usernames and passwords, the defendants moved to compel.  Id. at *1–2.

The Howell court explained that although private information in a social media account is discoverable, "[A] litigant has no right to serve overbroad discovery requests that seek irrelevant information."  Id. at *3.  Applying this standard, the court found that the defendants' requests were overbroad because they sought access to all information, both relevant and irrelevant, in the plaintiff's social media accounts.  Id.  Importantly, however, the Howell court also provided the defendants the opportunity to serve additional interrogatories and document requests seeking "information from the [social media] accounts that is relevant to the claims and defenses in this lawsuit."  Id.  Thus, although the court denied the motion to compel, the court left the door open for the defendants to obtain the requested information through different, more narrowly-tailored means of discovery.

Tompkins and Howell constitute a reasonable application of traditional rules of civil procedure to new technology because the cases each involved a request for all information, relevant and irrelevant, contained on another party's social media account.  In Howell, the defendants requested the plaintiff's social media usernames and passwords, seeking unfettered access to private information.  Such a request is inconsistent with traditional notions of discovery.  For example, a plaintiff seeking a defendant's emails would ask the defendant to review and produce such documents; however, the plaintiff would not have the right to ask the defendant for his email username and password so that the plaintiff could "rummage at will" through the defendant's private information.  Similarly, while a party could obtain relevant documents kept in a locked filing cabinet, a party could not obtain the key to the cabinet to gain access to both relevant and irrelevant documents.

Although Tompkins and Howell are reasonable when applied to overbroad requests for all information in a social media account, the opinions are less persuasive in the context of narrowly-tailored discovery requests seeking specific types of relevant information.  Courts in jurisdictions outside of the Sixth Circuit have granted motions to compel where discovery requests seek such specific categories of social media evidence.  E.g., Giacchetto v. Patchogue-Medford Union Free Sch. Dist., No. CV 11-6323 (ADS) (AKT), 2013 U.S. Dist. LEXIS 83341, *13–14 (E.D.N.Y. May 6, 2013).  This approach appears to be in line with the court's decision in Howell, which left open the opportunity for the defendants to obtain the requested information through more specific interrogatories and document requests.  This approach also makes sense considering the broad scope of discovery, which typically allows, for example, production of all relevant documents in a locked filing cabinet, while stopping short of providing the key to the cabinet.

As websites such as Facebook continue to change and develop, it will be interesting to watch how courts apply the civil rules to requests involving emerging forms of technology.  As Tompkins and Howell demonstrate, though, courts within the Sixth Circuit will not abandon the traditional notions of discovery, even when the information sought is stored in a non-traditional way.