Discovery Tools Can Be Used to Develop Social Media and Smartphone Evidence

This post is part of JGL’s continuing series of blog posts regarding the use of social media evidence in litigation. Here are some tips for using standard discovery tools to develop social media and smartphone evidence:

Interrogatories

• Interrogatories can be used to identify an opposing party’s social media accounts and applications containing discoverable information.
• Interrogatories also can be used to discover the devices used by a party.  At a minimum, requests for such information should require an identification of the types of devices used, the dates the device was used, the owner of the device, the cellular network for the device, and the cellular telephone number associated with the device.
• Another potential use for interrogatories is an identification of “cloud” storage accounts (i.e. iCloud, Dropbox, etc.) used by the opposing parties.  Such accounts can be a treasure trove of discoverable information such as device backups, photographs, and text messages.
• Specifically tailored interrogatory requests are more likely to be upheld by a Court than a broad request seeking disclosure of a party’s name and password for social media accounts, device passcode, or application login information.

Requests for Production of Documents

• Use a request to ask for the production of the contents of a social media account using “do it yourself” tools.  Every Facebook page contains a “Download Your Info” link that will create a complete copy of the user’s archive.  Similarly, you can send a “Request for Own Account Information” to Twitter via email.
• Consider requesting that the opposing party execute a release authorizing disclosure of his or her social media information.  A valid release will include the user’s name and “screen name,” date of birth, email address, street address, and a description of the materials being sought.  The release also should contain a notarized signature of the user.

Requests for Admissions

• Requests for Admissions can be used to authenticate produced materials.
• Requests for Admissions also can be used to identify social media accounts if the opposing party has not adequately responded to interrogatories or requests for production, or has declined to sign a release.
• Be sure to draft your requests so that a non-response “admission” under the Rules is advantageous to your case.