Social media may contain important relevant evidence in any number of different legal disputes. It is important to note that the information of a member in a social media site is not obtained by subpoena of the social media provider itself, any more than email is obtained by subpoena of an email provider. The information is discovered from the member. It is their information, they own it, not the providers, and thus the proper course of conduct is a request for production, or subpoena, from them.100 Text searches are run, the use of key words only determines potentially relevant documents or files. The fact that a document or file comes up in a key word search, or otherwise is found to contain an agreed upon keyword, does not in and of itself make it discoverable.
Example: Party A in a commercial case seeks discovery of all emails in the possession or control of Party B that relate to the same transaction that is at issue or similar transactions for the previous five years. Two key words selected by Party A are the word “cobalt” and the name “Prosser.” Party B is willing to run those key words and then select and produce discoverable, non-privileged documents. Party A contends that it is entitled to receive all emails containing “cobalt” or “Prosser.” Is Party A entitled to the discovery of all the emails identified in the word search using these terms? Answer: NO. Relevancy is determined by examination of the document itself. The words used in a search, even if they are agreed upon by the parties as appropriate search terms, are but a tool to identify potentially relevant documents. Relevancy is determined by legal analysis of whether the document is (1) relevant to the case's subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court.101 Documents that turn up in a word search may or may not meet these criteria, and Party B is only obligated to produce discoverable documents. The analog equivalent to the demand made by party A is to request a search of all file folders with the words “Cobalt” and “Prosser” on the file labels and then contend that all paper within those folders is discoverable. The determination of relevancy is made by examination of the document itself, not normally by the wording of the label on the folder in which the document is found.
