We have all heard the humorous statement that "If it's on the internet it must be true." We also all know how untrue that statement is. The possible sources of social media are continually expanding - Facebook, Twitter, Instagram, YouTube, Tumblr, LinkedIn, Pinterest - and the list keeps growing. It is very rare indeed to come across an individual or company that has no social media presence. As to Facebook alone, it is estimated that nearly 1.5 million people log onto the site each day across the world, new profiles are created by the second, including fake profiles and millions of photos are uploaded every day. It may in fact seem like a daunting task to find these information without assistance.

You also need to be sure you have the correct individual or company, many names are the same or similar. Once you have determined that you have the right person, discuss with your team how you are going to obtain the information. If the individual has not marked their profile as private, it's possible you can view photos and posts just by logging into the site. If they have secured their information you may need to serve discovery requests.

Public information may be obtained in a number of ways. Programs such as X1 and services such as Page Vault can collect social media from numerous sources. The data will be returned to you in searchable format. If you are relying on screen shots of the public data, you should consider how you would get these screen shots authenticated for use at trial. Some options are asking the posting party to authenticate at deposition, a records custodian deposition of the network or if it involves a party to the action you can serve Requests for Admission. The court in Internet Specialties W., Inc. v. ISPWest, 2006 WL 4568796 ruled "Defendant's argument that [web pages] could be 'authenticated' by the person who went to the website and printed out the home page, is unavailing. Case law also exists where social media posts were disallowed as the posting party made claims that their account had been hacked. Before entering into a prolonged (and likely expensive) discovery dispute, a review of ever changing case law on this topic.

Paralegals are bound by ethical guidelines in obtaining social media, just like attorneys. We cannot friend a litigant or contact the litigant or associated individuals in order to gain knowledge. Likewise, a litigant cannot change or delete social media to conceal information as they may be subject to a spoliation claim. Be sure your clients are aware of this. Attorneys should be asking at deposition if a party has deleted any social media entries or accounts since the incident or start of litigation. We all know that most things are never really deleted in a manner where they cannot be reconstructed. Social media posts are not actual computer files they cannot be produced natively. There are options to obtain more data on a specific posting but you may want to consider the time and cost involved before requesting that on each and every piece of social media produced.

If you need to obtain social media via discovery, keep the interrogatories or requests limited to the applicable time frames. Don't ask for someone's entire Facebook history, set a beginning and ending date. Do not request a user name and/or password. Individuals are not required to provide this, barring extraordinary circumstances and a court order, and this will only delay your obtaining what is available. In addition, request a privilege log for each piece of social media they have declined to produce.

Narrow your request to requesting social media that pertains to the case, such as activities or health condition since the time of the incident, that may help you get what you are looking for with less of a fight. Fishing expeditions for social media are rarely upheld by the court. In Wilkinson v. Greater Daytona Reg'l Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2015), the court ordered production of:

"[A] ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets or other social media messages that relate or refer to your employment with GDRTA, your alleged serious health condition or your activities on days when you requested FMLA leave."

Likewise, in Scott v. United States Postal Service, No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), the court found the plaintiff's objection of "overbroad" to be insufficient but in turn limited the request to:

"identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she accessed the accounts since the accident, and the last time she accessed the accounts.

and

"all of Plaintiff's social media postings, including photographs, since June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident."

What you request and how you request it can make a big difference. By making clear and concise requests you are more likely to get what you are looking for and have a stronger footing if you need to bring this before the court.

While a user of social media platforms should not expect a right to privacy, and even if you have propounded limited discovery as noted above, many times you will get pushback from opposing counsel. If this matter is brought before the court in a discovery dispute, you have the option to request an in camera review of the alleged private postings or request that a special master be appointed to review them on an ongoing basis if you anticipate continuing discovery.