There must be some problem with our comment function, because we received an email from a reader that the comment quoted below wouldn’t post. We apologize for that, but (being Luddites) all we know how to do is put it up as a post. Here’s the comment:
Wouldn’t such a request be objectionable and properly denied because it would deny plaintiff’s counsel the opportunity to review the materials beforehand? If you send a request for plaintiff’s written “diary”, his or her attorney would no doubt review it for private or privileged information and would never just hand it over to you in toto without review.
Also, if your theory is right, why not just have the deponent log onto his or her gmail account and scroll through its contents?
It seems to me that any such request at a deposition would rightly be seen as an attempt to do an end-run around the established procedures for production of documents.
We’d be sure to have a computer with Internet access set up at the deposition site when doing this. There’s nothing in the rules that prevents us from requiring the plaintiff to log into his or her space on the web and show us around. Except for the medium, it’s no different than having the plaintiff produce and go through a written diary.
Here’s what we think. The usual duces tecum attached to a plaintiff deposition notice (and almost never objected to) seems to us sufficient to deal with any surprise objection – especially if a document request also went out beforehand with a definition broad enough to include material on social networking sites/accounts. Objections to document requests typically are waived if not expressed, and we’re entitled to inquire at depositions into whether responsive documents are being withheld.
Relevance is typically not a valid basis to instruct a witness not to answer at a deposition. That’s right out of Discovery 101.
The privilege/privacy objection might also be waived by failure to object or comply with prior document requests/duces tecums (we don’t know the Latin plural for this), but we’ll let that go and move directly to the substantive point.
What privilege? What privacy?
This isn’t a diary that nobody else has seen – maybe we didn’t come up with the best analogy in the world. By definition, the material we would be asking the witness to show us would already have been made available to whatever “friends” or similar categories of people to whom the plaintiff granted access. That’s the whole point of social networking. Even assuming a protected site, the voluntary publication of material on a social networking website to a bunch of miscellaneous “friends” seems to us to be incompatible with any privilege or privacy objection.
The self-publication aspect would also also make things different from a gmail or email account. We agree that an email to counsel would be privileged, and depending on the jurisdiction possibly an email to a treating physician or a spouse. Beyond that, the emails/gmails are probably themselves discoverable unless there’s some unusual privacy objection.
Nevertheless, we’d probably be inclined to recess the deposition and let counsel have a chance to review the material on the client’s site for a few minutes. If there are specific objections, we’d address them on the record. But as we said before, we’ll be very skeptical of privilege or privacy objections to material that the plaintiff chose to post on a social networking site – and we think most judges would share our skepticism.
We’re not unreasonable folks. If opposing counsel was also being reasonable with respect to relevance in e-discovery, we’d also be inclined to work out a relevance arrangement. But, frankly, we’ve been on the receiving end of e-discovery requests that demand a lot more irrelevant information than the entire contents of a plaintiff’s social networking account – how about the production of all of the emails of an entire corporate department for years, with no exceptions whatsoever. Ultimately one reaps what one sows.
Finally, what is e-discovery if not an “end-run around the established procedures for production of documents”? The biggest problem we see is the almost irresistible incentive that a plaintiff has to hit the “delete” key with respect to compromising information if given advance notice. That’s why we view the deposition, being a proceeding on the record, as an excellent place to raise this type of discovery.