District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data

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Many social media programs provide their members with a non-forensic download tool.  For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019).

However, those tools may not provide the same information that a forensic download collects.

In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), the Court gave qualified approval of use of non-forensic tools to collect, preserve and produce social media.

First, the Court clearly permitted use of the social media tools:

Plaintiffs’ production is limited to information found in the typical “download” of information obtained by Plaintiffs through their own social media providers. For example, according to Defendant, one’s Facebook account can be downloaded by selecting “Settings” then clicking “Download a copy of your Facebook data” under General Account Settings. … Thus, where a social media provider has built in “tools” to allow a user to obtain their history of posts on the platform, Plaintiffs may utilize those tools even if the tools have limitations in what they are able to provide. It could be that the information obtained would not include content such as comments Plaintiffs may have made on someone else’s post, or other data, or “likes” of photographs posted by third parties. But Plaintiffs need not engage in extraordinary efforts in obtaining responsive information beyond the history each platform is typically able to provide its users. [Emphasis added].

Second, the Court left the door open for “phase II” discovery.  This reinforces the need to preserve the account, even after production, in the event of such a requirement.  The Court wrote:

The Court is not foreclosing an expansion of the scope of production upon a specific showing from Defendant justifying such an expansion after Plaintiffs’ initial production is made. Additionally, the Court is not foreclosing additional “burden” arguments should the narrowed scope of production or any of the specific types of information sought (i.e., “tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries”) prove unwieldy. The Court does not rule out considering cost shifting in the future, although does not believe the current facts justify a departure from the general rule that a producing party, as the creator of the information sought, should pay its own costs of production.

In all cases, a party should consider proportionality.  In a smaller, low stakes, or other appropriate case, a producing party might choose a non-forensic download while retaining the potentially responsive data on the social media platform.  It may turn out that the download is sufficient.

Where the stakes are higher, that may be imprudent.  In a mega-case, the relatively low cost of a forensic copy may be justified at the outset.

The Allen Court made clear that, after a non-forensic download, “more” may be needed.  Clearly, as discussed in a prior blog, “The Duty to Preserve Continues Even After Production of Social Media.”

Allen is noteworthy for its practical approach to preservation, collection, and production of social media.