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Social Media Discovery: Moving Away From the "Threshold Rule"

Written by James P. Goslee

Over the past few years, courts and litigants have grappled with vexing evidentiary issues concerning when and how private social media content (particularly Facebook and Twitter postings) should be turned over in discovery. During this time, courts have proposed, adopted, modified, and discarded a number of different paradigms and rules for dealing with these disputes.

Although these evolving judicial approaches have largely strived to balance the competing interests of privacy and disclosure in fashioning practical guidelines concerning the discoverability of social media, these decisions have not always been grounded in evidentiary rules. This is particularly true with respect to the popular (if not principled) approach of allowing litigants full access to an opposing party’s private social media account if they can make a threshold showing that some public content is relevant. Although this “Threshold Rule” remains the most prevalent approach to resolving social media discovery disputes, it is slowly being replaced by a thoughtful approach more solidly grounded in the evidentiary rules.

As I have written previously, recently courts have begun to adopt a more nuanced approach to social media discovery, which is more fair and philosophically consistent with traditional rules of evidence. Rather than allowing a party unlimited access to his or her opponent’s private social media, the scope of discoverable material is properly limited by traditional relevancy requirements. Although this shift from the bright line “Threshold Rule” to a “relevancy” based approach is a positive step in the development of a workable discovery framework, the novel and evolving nature of social media technology requires ongoing judicial consideration and refinement of discovery rules.

One recent opinion from the United States District Court for the Eastern District of New York is particularly well-reasoned and provides significant guidance for resolving future social media discovery disputes. In Giacchetto v. Patchogue-Medford Union Free School Dist., No. 11-6323, 2013 U.S. Dist. LEXIS 83341 (E.D.N.Y. May 6, 2013), a plaintiff sued her employer under the Americans with Disabilities Act and asserted claims for physical and emotional injury. During discovery, the defendant requested that the plaintiff provide authorization for the release of all records from her social media websites. The defendant contended that plaintiff’s social media content contained information relevant to her emotional injuries because “it reflects her ‘levels of social interaction and daily functioning.'” Id. at *3. Naturally, the plaintiff disagreed, arguing that the defendant was on a fishing expedition, and Magistrate Judge Kathleen Tomlinson entered an opinion resolving the dispute.

From the start, Judge Tomlinson rejected the notion that litigants are entitled to full access to their opponent’s social media content. Quoting a decision from the Southern District of Ohio, Judge Tomlinson noted that “the fact that the information Defendant seeks is an electronic file as opposed to a file cabinet does not give it the right to rummage through the entire file.” Id. at *4. She also criticized the rationale and questionable utility of the “Threshold Rule”:

This approach can lead to results that are both too broad and too narrow. On the one hand, a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff’s claims. On the other hand, a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section.


Rather than adopt the questionable, all-or-nothing “Threshold Rule,” Judge Tomlinson opted to undertake a traditional relevance analysis, explaining that “The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it.” Id. Judge Tomlinson’s relevance analysis drew an important distinction between physical and emotional injuries. According to the Court, “[w]hile the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiffs claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous.” Id. at *10. Judge Tomlinson went on to hold that because routine status updates and communications on Facebook and other social media sites are not relevant to damages for emotional distress, they are generally not discoverable. Id. at *11.

In addition to discarding the faulty “Threshold Rule” in favor of a nuanced relevance analysis, Judge Tomlinson endorsed the practical approach of designating the lawyers as administrators in charge of reviewing and turning over relevant Facebook content. She ordered “Plaintiff’s postings to be reviewed for relevance by Plaintiff’s counsel and that Plaintiff’s counsel – not Plaintiff – make a determination regarding the relevance of the postings, keeping in mind the broad scope of discovery under Rule 26.”

Judge Tomlinson’s opinion in Giacchetto is another important step in developing a practical, rule-based discovery model for social media content. But it is also important to the extent that it exposes and analyzes the irreconcilable evidentiary flaws in the prevailing Threshold Rule. Rather than blindly accept the arbitrary and intrusive aspects of the Threshold Rule, Judge Tomlinson showed how a relevance-based approach can and should work for fair and expeditious resolution of social media disputes. In this respect, the Giacchetto decision should serve as a template for other courts seeking a model for future social media discovery.

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