In divorce or child custody cases, I personally don’t like issuing broad discovery requests for the opposing party’s social media usage. Until a few years ago I routinely issued such requests for production. Many of my colleagues still do. However, I have changed my thinking. I don’t think a party’s social media usage is per se discoverable. I think having access to the other party’s social media usage tends to create bitterness without providing much relevant information for trial.
On rare occasions, when I think particular social media information might be relevant on fault or custody issues, I might seek that particular information. However, I will typically object to producing complete records of my client’s social media usage and won’t request the other party’s social media usage unless the opposing party demands my client’s information.
My sense from speaking to other attorneys is that when custody or fault divorce is at issue, South Carolina family court judges routinely order disclosure of all social media information. I have not had to test the issue by defending a motion to compel. I would be concerned about a client being socked with substantial attorney’s fees for objecting to such disclosure. This is despite Rule 37(a)(4), SCRCP, holding that if opposition to disclosure “was substantially justified,” fees for a motion to compel do not have to be awarded.
I think there are two very good reasons general disclosure of all social media should not be compelled. While Rule 26(b)(1), SCRCP, which addresses the scope of discovery as “information … reasonably calculated to lead to the discovery of admissible evidence,” there is also an overwhelming amount of case law starting from the 19th century indicating that discovery is not to be used as a “fishing expedition.” A broad request for all social media information strikes me as quintessential fishing.
Moreover, South Carolina is one of a small number of states that has an explicit right to privacy in its state constitution. Article I, Section 10, states, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.” (emphasis added). Our Supreme Court has interpreted this provision to grant privacy rights outside of unreasonable search and seizure jurisprudence and has used this provision to grant greater privacy protections than that offered by the United States constitution.
My cursory research of other states’ handling of this issue yields no consensus answer. Further, given South Carolina’s atypically explicit right of privacy, it’s not clear that our Supreme Court wouldn’t be more protective against per se disclosure than the average state. Someone—and it will likely have to me be—needs to bring a test case in the Supreme Court on this issue. The decision on whether social media information is per se discoverable should not be left to the whims of each individual family court judge.
Greg, you might want to expand that excerpt from Article I Section 10. The way you’ve quoted it is… confusing.
Noted and done.
We often face the same issue in civil litigation. Have you read Keller v. National Farmers Union Property & Cas. Co., 2013 WL 27731 (D. Mont. January 2, 2013)?