Instagram stories: not gone for good
By: Rob Wheeler
Discovery requests are a vital when building or finalizing a case. In order to use this tool to its full advantage, attorneys are requesting and obtaining information from opposing parties’ social media accounts during written discovery more and more frequently to find information that a party might not otherwise document. For example, a request for production of documents that seeks a plaintiff’s Instagram Stories may reveal information crucial to a case’s outcome, such as the plaintiff admitting to a non-injury or revealing the existence of a previously unknown interested party. Social media discovery requests have become particularly important in cases involving younger plaintiffs.
The internet continues to grow in scale and become more widely used by all ages and demographics. Since 2006, all age groups have increased their social media participation. However, one age group continues to dominate social media use. Eighty-six percent of people between the ages of 18-29 use at least one social media site.
Not surprisingly, social media participation increased during the COVID-19 pandemic. “Visits to TikTok’s website grew nearly 600 percent on average in 2020 compared to the year before,” according to SimilarWeb. “Meanwhile, visits to Instagram were up 43 percent, Twitter 36 percent, and 3 percent for Facebook, which is still impressive considering how massively popular the site already was,” Reported Rani Molla in an article for Vox.
Instagram has become one of the more popular forms of social media, especially for young adults. “A majority of 18- to 29-year-olds say they use Instagram (71 percent) or Snapchat (65 percent), while roughly half say the same for TikTok,” according to a Pew Research Center report by Brooke Auxier and Monica Anderson. A likely reason for this growth is due to the variety of ways users can share information with their followers. Instagram provides four platforms for sharing information: Instagram Posts, Instagram Live, Instagram Stories and Instagram Reels. Instagram Stories are photos or videos that appear on a user’s feed for 24 hours and then disappear. Depending on the user’s preferences, Stories can be shared during that time frame with the public, a user’s followers or a specific group of followers personally selected by the user known as “close friends.”
While one may think these posts to Instagram Stories disappear into oblivion, they do not. Instagram stores a user’s Stories in two different ways: Instagram Data Download and Instagram Archive. A download of a user’s Instagram Data creates a zip drive that contains all of the photos or videos a user has posted, old Stories they have saved and more. Although this data may provide a case-altering photo or video, a discovery request for the Data Download could elicit an objection from plaintiff’s counsel that the request is “overbroad and unduly burdensome.” Instead, the simpler way for a plaintiff to access prior Instagram Stories is through Instagram Archive. This default feature on Instagram is automatically applied and saves posts made on Instagram Stories, even though users might be unaware of the feature. Instagram users can access their archived Instagram Stories through four easy steps:
- Open the Instagram app and tap on the profile button.
- Once on the profile page, tap the three bars in the upper-righthand corner.
- Tap “Archive” next to the clock icon.
- At the top select “Stories Archive.”
A discovery request to a plaintiff for their Instagram Archive cannot reasonably be said to be overly intrusive or unduly burdensome for the plaintiff to perform, particularly if the steps for accessing the Instagram Archive are provided within the request.
Social media is here to stay so we will use this technology to our advantage. While asking for the download of a party’s Instagram Data is one way to obtain the Stories a plaintiff might believe are long gone, requesting a plaintiff’s Instagram Archive provides an even easier method for defense attorneys to obtain the potentially relevant information from these “temporary” social media posts, provided the Archive feature is set to save the plaintiff’s Stories. As the plaintiff may think these Stories are available only for 24 hours, they may feel free to post a photo or video that could change a losing case into a winning one.
Attorney Contact Info
Rob Wheeler
rob.wheeler@swiftcurrie.com
404.888.6194