By Steve I. Silverman
A recent ruling by a Pennsylvania state court denied a defendant’s request for plaintiffs’ social media records.  In Hoy v. Holmes, case no.: S-57-12, plaintiffs sued defendant for damages arising from an automobile accident.  Defendant sought and later moved to compel production of the plaintiffs’ social media records.  The court denied defendant’s motion without prejudice, finding that there was no factual predicate to support a request for these documents.

This order is interesting because it highlights the fact that while social media may contain a wealth of information, the requesting party must demonstrate an appropriate predicate between the information sought and the potential for the discovery of relevant evidence.  Both state and federal discovery laws tend to frown on “fishing expeditions” where a party seeks overbroad discovery in a blind effort to see if any pertinent evidence arises from the production.  A link to the entire order can be found here.
Holmes argued that he was entitled to the social media information in order to determine the plaintiffs’ state of mind since they were seeking damages for both physical and mental injuries.  The court employed a balancing test, requiring the movant to identify some nexus between the information sought and the social media pages.
Here, because Holmes cannot first see copies of the social media contents to know if there is relevant discoverable information, a practical suggestion would be to  depose the plaintiffs and inquire about their social media use habits and attempt to establish the necessary link between the social media and lawsuit.  Even the existence of photographs may be enough to get access to the content because the photographs might show the existence (or lack of) physical injuries, for example.
As social media continues to become a bigger presence in litigation discovery, cases like this will be arising in state courts all over the country.  I will continue to blog about these cases and highlight trends in social media discovery.