District of Maryland Clarifies Rules Governing Discovery of Social Media

In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), and Gaske v. Crabcake Factory Seafood House, LLC, 2021 WL 3188007 (D. Md. Jul. 28, 2021), the Honorable J. Mark Coulson described the principles governing discovery of social media.  Both decisions involved employment law claims.

In Gaske, plaintiffs suing under the Fair Labor Standards Act sought evidence that individual defendants were employers within the meaning of the FLSA.  They propounded a request for production of documents seeking “all non-privileged content and data” from social media sites.  Defendants objected to overbreadth and asserted that the information was equally available to plaintiffs.

In Allen, defendants requested social media posts referring to the facts and witnesses in the lawsuit, and the Court held that was proper, although it directed use of a narrower time window.  2021 WL 2434404 at n. 1.

However, the Allen defendants also asked for much more, including “[a]ny and all social media posts… that refer or relate to Plaintiffs’ emotions, feelings, or mental states from January 1, 2013, to the present.”  The Court found that request far too indefinite.

Judge Coulson stated several clear principles governing the discovery of social media:

• “As a starting point, this Court agrees that discovery of social media requires the application of basic discovery principles in a novel context.”[1]
• “Generally, social media content, even where designated as ‘non-public,’ is neither privileged nor protected by any right of privacy (beyond, of course, the protections any litigant enjoys under FRCP 26(g)).”
• “This Court … rejects the requirement urged by Plaintiffs and imposed by some other courts regarding a threshold evidentiary showing by the requesting party that an opponent’s ‘public’ social media account(s) contains relevant information, such that an exploration of non-public information is justified.” [Emphasis added].
• “Still, discovery seeking social media must be relevant to a claim or defense, proportional to the needs of the case, and not unreasonably cumulative, duplicative, or designed to embarrass or harass.”
• “With regard to requests for production in particular, FRCP 34(b) further requires the requesting party to describe the items to be produced with ‘reasonable particularity,’ such that the responding party is under reasonable notice as to what is, or is not, called for in its response.”

Not surprisingly, in Gaske and Allen, the Court determined that the blunderbuss requests did not meet the “reasonable particularity” standard of Fed.R.Civ.P. 34.

For example, in Gaske, the request for “all content and data” was not valid. Instead, the Court directed production only of ESI that showed that the business entities held the individual out as an owner or partner, i.e., an “employer” under the FLSA.  It has long been recognized that requests for “any and all” documents are overly inclusive.  Here, the Court limited the requests to the claims and defenses at issue.  See Fed.R.Civ.P. 26(b).

In Allen, the Court also distinguished social media requests in physical injury cases and created a nuanced rule based on the type of emotional distress asserted:

A plaintiff’s social media postings could be relevant to a claim for “garden variety” compensatory damages to include an emotional health component. However, some caution must be employed. Unlike cases alleging physical impairment, where social media posts documenting functionality beyond that alleged in the complaint would be clearly relevant, this Court agrees with those cases drawing a distinction between claims of physical impairment versus emotional or mental health damages….  Likewise, cases alleging “garden variety” emotional distress should be distinguished from those that allege severe and specific emotional distress, with social media posts regarding the latter justifying a deeper social media dive than the former….  This is driven both by the “particularity” requirement found in FRCP 34(b), and the inherent shortcomings of social media posts as a reliable and probative indicator of emotional well-being in the absence of specific emotional complaints.

Id. at * 3 (Emphasis added).

[1] Citations and internal quotations are omitted in this blog.