Posted by Gary Burger on November 10, 2016 in Law
When you have a party whose Facebook information could reveal valuable information which is pertinent to your case, it is important to know whether you can discover this private information or not. Despite being pervasive among adults of all ages, discoverability of social media is still a developing area of law and is likely to evolve in the coming years. Here is the current law in Illinois and Missouri:
In Illinois, a parties’ private Facebook posts and photographs are not discoverable unless they are relevant or likely to lead to relevant information in a case. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable that it would be without the evidence.” See Illinois Rules of Evidence 401. While there is little Illinois case law which discusses the parameters of Facebook specific discovery, in 2016 a U.S. Northern District of Illinois judge, applying Federal law, limited a Defendant’s Facebook production request when it was not sufficiently relevant or limited in scope. See Maochun Ye v. Cliff Veissman, (1:14-cv- 01531).
In Missouri, a court may compel production of a party’s information if the request is relevant and not overly broad and burdensome. See State ex rel. Upjohn Co. v. Dalton, 829 S.W.2d 83 (Mo. App. E.D., 1992). It is important for the requesting party to narrowly confine their discovery requests to specific dates, times, and subject matter- especially when it comes to Facebook. In essence, when a request “goes beyond a mere fishing expedition, [and] it seems designed to ‘drain the pond and collect the fish from the bottom’” it will likely not be found producible by the court. See In re IBM Peripheral EDP Devices Antitrust Litigation, 77 F.R.D. 39, 42 (N.D.Cal.1977) (citing Dalton at 85).