Facebook “tagging” adds a new wrinkle to social media discovery

Thumbnail image for facebutton.pngMore litigants are requesting that their adversaries produce social media evidence during litigation. Often this information is reasonably likely to lead to the discovery of admissible evidence at trial.

For example, a Facebook status update about a great day from a plaintiff suing her former employer for discrimination could bear on her claim for emotional distress. Therefore, she would have to produce this status update as part of discovery if requested to do so, because, not only is the information relevant, it is within the plaintiff’s “possession, custody, or control.”

Same holds trues for a plaintiff in a personal injury action claiming that she suffered a debilitating back injury. She may have to produce recent Facebook photos of her riding on a speedboat. 

And according to a recent decision from an Indiana federal court, this obligation to produce would extend to photos that the plaintiff didn’t post on her own Facebook page.

In Higgins v. Koch Development, the plaintiffs, visitors to Koch’s theme park, claimed to have suffered serious injuries. Koch requested that two of the plaintiffs produce Facebook information. Those plaintiffs objected for, among other reasons, they claimed that the privacy of non-parties was violated because photographs and information uploaded by non-parties and published on their pages, through a process known as “tagging,” would be discovered.

For my Facebook beginners out there, (here) is an explanation of “tagging”:

When you tag someone, you create a link to their timeline. The post you tag the person in may also be added to that person’s timeline. For example, you can tag a photo to show who’s in the photo or post a status update and say who you’re with. If you tag a friend in your status update, anyone who sees that update can click on your friend’s name and go to their timeline. Your status update may also show up on that friend’s timeline.

When you tag someone, they’ll be notified. Also, if you or a friend tags someone in your post and the post is set to Friends or more, the post could be visible to the audience you selected plus friends of the tagged person.

Well, not only did the court poo-poo the notion that this “tagged” non-party information is private, it went the next step and concluded that photos in which a responding party is tagged are relevant, and should be produced because the tag places them within that party’s “possession, custody, or control.”

Therefore, next time you request social media as part of discovery, make sure that you ask for “tagged” information. Also, anticipate that your savvy adversary may do the same. Consequently, remind your client that, to the extent possible, relevant tagged information should be preserved when litigation is reasonably anticipated and later produced if responsive to a document request.

(h/t @SaraJodka)