8
Pro Te: Solutio
o
cial
dD
n
a
a
i
d
Me
i s c o ve r y C o n s i d
erat
ion
S
s:
A NEW
FRONTIER
or the Same Issues in New Packaging?
Facebook, smart phones, computer searches, twitter, texting — sometimes it feels like social media is inescapable.
Has it wormed its way into litigation strategy? Should the lawyer you hired for your big case be as knowledgeable about social media
as trial techniques? Should you be concerned about privacy and ethical issues? Is using social media in litigation merely a convenient
and more efficient way to do what has always been done: to gather information about the opposing parties, witnesses, and jurors?
The answer to those questions is a resounding...maybe.
This new form of communication presents challenges on how to discover and use its content in litigation. Additionally, your company’s social media content may have to be preserved in order to minimize risk. The case law in this area is surprisingly sparse but
growing. We are starting to see how social media is affecting litigation.
Use of Social Media in Discovery
It appears that judges are taking into
consideration the same legal concepts for
discovery of social media as for other information. In Equal Employment Opportunity
Cmm’n v. Simply Storage Mgmt. LLC,1 the
defendant requested photographs, videos,
postings, and profiles from the plaintiffs’
Facebook and MySpace pages to secure
evidence relating to their mental health.
The EEOC objected to the request, and
the defendant moved to compel the evidence. The court noted that discovery of
social media simply “requires the application of basic discovery principles in a
novel context.”2 The court rejected the
plaintiffs’ privacy arguments, noting that
“a person’s expectation and intent that her
communications be maintained as private
is not a legitimate basis for shielding those
communications from discovery.”3 The
court in this case ultimately determined
that the requests were too broad and narrowed them to the issues in the case: profiles, postings, or messages and social media
applications for the claimants that “reveal,
refer, or relate to any emotion, feeling, or
mental state [or] that could reasonably be
expected to produce a significant emotion,
feeling, or mental state.”4
Recently, judges in personal injury cases
in both New York and Pennsylvania compelled discovery of social media evidence
Pro Te: Solutio
9
that dealt with the claimed incapacity of
the plaintiffs. In Romano v. Steelcase,5 the
personal injury plaintiff alleged back and
neck problems. The defendants noticed
that her public social media pages portrayed a different picture of her medical
condition and sought a motion to compel production of her private social media
profiles. The court ordered her to execute
a consent form authorizing Facebook and
MySpace to provide the defendant’s access
to her private profile. In granting the
motion, the court noted Facebook’s and
MySpace’s own policies, which warn users
that they should have no expectation of
privacy. The court stated that “when plaintiff created her Facebook and MySpace
accounts, she consented to the fact that
her personal information would be shared
[…considering] the law’s general dispreference for the allowance of privileges, access
to those sites should be freely granted.”9
Similarly, in Beye v. Horizon Blue Cross/
Blue Shield10 the court was not persuaded
by the plaintiff’s allegations that disclosure
of the minor’s Facebook pages would cause
her stress, anxiety, or the potential relapse
of her eating disorder. The court found
that “[t]he privacy concerns are far less
when the beneficiary herself chose to disclose the information.”11
Courts are showing some flexibility in
deciding what part, if any, of Facebook or
other social media postings might have to
be disclosed. In Offenback v. LM Bowman,
Inc.,12 a personal injury lawsuit, the magistrate himself undertook a review of the
Facebook pages in camera. The plaintiff
would forward on any relevant information to the parties. Then, he would close his
Facebook account. It is unknown whether
this novel “friending” solution was accepted
by the parties.
Two recent ethics opinions focus on
these issues in their discussion of the ethics of searching social media profiles of
participants in a trial. The Philadelphia Bar
Association Ethics Committee was asked if
an attorney could engage a third party to
“friend” an unrepresented adverse witness
whose Facebook and MySpace pages were
not accessible to the general public.14 The
third party would post truthful personal
information, but would not mention his
association with the lawyer or that the real
purpose of the friend request was to obtain
potential impeachment information. The
Companies need to be ready not only to proactively use social media in litigation, but also to protect
against spoliation claims. To the extent social media data is treated like other forms of electronically stored
information, the same standards regarding preservation, collection, review, and production will apply.
Companies should consider whether relevant information can be found on a social media site, and if
so, whether or not they are required to or wish to preserve and/or collect such information in discovery.
with others, notwithstanding her privacy
settings. Indeed, that is the very nature
and purpose of these social-networking
sites else they would cease to exist.”6
In McMillen v. Hummingbird Speedway,
Inc.,7 a Pennsylvania state court matter, the
defendant’s interrogatories asked whether
McMillen belonged to any social network
computer sites and, if so, that he provide
the name of the site(s), his user name(s),
his login name(s), and his password(s).
The plaintiff objected that the information was confidential and privileged. The
court granted the defendant’s motion to
compel, noting that “the complete access
afforded to the Facebook and MySpace
operators defeats McMillen’s proposition
that his communications are confidential.”8 The court concluded that “[w]here
there is an indication that a person’s social
network sites contain information relevant
to the prosecution or defense of a lawsuit,
10
Pro Te: Solutio
alleged that he had suffered back, shoulder, and neck injuries that left him physically limited and suffering from anxiety
and depression. The court found that postaccident photographs and postings revealing that the plaintiff rode from Kentucky
to Pennsylvania on his Harley and that he
had recently ridden a mule needed to be
disclosed, but other information did not.
A more creative solution was found by
the magistrate in Barnes v. CUS Nashville
LLC.13 There, the magistrate found that
photographs of the plaintiff dancing on
the bar might be relevant to how her injury
occurred. He therefore offered to create a
Facebook account for himself. If the two
photographers whose Facebook accounts
contained this information agreed, they
could then send him “friend” requests
which he would accept for the sole purpose
of reviewing photographs and related comments of the incident in question. He then
opinion stated that the attorney’s proposed
actions violated the Pennsylvania Rules of
Professional Conducts which prohibit a
lawyer from engaging in deceit or misrepresentation.15 The opinion also found that
such actions violated the duty to supervise
the conduct of a non-lawyer employed by
the lawyer because that employee would be
omitting a material fact in his communication with the witness.16
The New York State Bar Association,
however, found nothing unethical in an
attorney viewing the publically available
Facebook and MySpace pages of an adverse
party to look for possible impeachment
materials.17 The opinion noted that the sites
the lawyer wished to view were accessible to
all members of the network, and he was not
gaining access by deception or misrepresentation. The opinion found that “[o]btaining
information about a party available in the
Facebook or MySpace profile is similar to
Pro Te: Solutio
11
obtaining information that is available in
publicly accessible online or print media, or
through a subscription research service.”18
Collecting and Preserving Social
Media Evidence: Playing Defense
The focus of discovery had a significant
shift over the last few years with the proliferation of email and the birth of “e-discovery.”
Gartner, Inc., a leading technology research
firm, has predicted that “[b]y 2014, social
networking services will replace e-mail as the
primary vehicle for interpersonal communications for 20 percent of business users.”19
The Federal Rules of Civil Procedure were
amended in 2006 to cover electronic discovery.
12
Pro Te: Solutio
Rule 26 (a)(1)(A)(ii) requires initial disclosure
of electronically stored information. Rule 26 (b)
(2)(B) addresses limitations on electronically
stored data due to burden and costs. Rule
33 (d), which provides the option of producing business records instead of answering an
interrogatory, makes it clear that electronically stored information is a business record.
Rule 34 specifically addresses the actual production of electronically stored information.
Not yet decided by the courts, however, is
whether company information, such as
a company’s Facebook page which is not
stored on the company’s servers, is subject to
these rules because that information might
be considered under the company’s control.
How to Deal with the New
Role of Social Media Sites
1. Companies need to be ready not only
to proactively use social media in litigation,
but also to protect against spoliation claims.
To the extent social media data is treated
like other forms of electronically stored
information, the same standards regarding preservation, collection, review, and
production will apply. Companies should
consider whether relevant information can
be found on a social media site, and if so,
whether or not they are required to or wish
to preserve and/or collect such information in discovery. If this information is relevant to litigation and should be produced,
companies must consider how to preserve it.
One of the challenges of social media is that
the data is not internally stored but instead
housed within the social media sites themselves. For companies, this difference makes
the control and preservation of this data significantly more difficult.
Vendors such as Smarsh, Inc., offer programs to preserve and capture information
on webpages including social media sites.
Interestingly, Smarsh recently published the
results of a survey of 223 compliance personnel on e-discovery. It found that only
one in seven had “complete confidence”
that they could produce within a reasonable time their employees’ business content
from social media sites such as LinkedIn,
Facebook, or Twitter if such information
was specifically requested in e-discovery.
In contrast, 87% of the respondents were
mostly or completely confident that they
could produce e-mails.20 This survey indicates that most companies have effectively
begun to deal with the e-discovery of emails,
but social media presents a much greater
challenge.21
2. When a lawsuit is filed, counsel should
immediately investigate whether the plaintiff has a Facebook, MySpace, LinkedIn, or
other social media profile. If information is
available to the public, such information
should be downloaded and saved, barring
any order by the court prohibiting such
action. The few court decisions to date suggest that any public information on those
sites is fair game. If the plaintiff has a social
media site with privacy settings and no publicly available information, the fact that the
plaintiff had such a page at the time he filed
the lawsuit will be helpful to know. Then, if
at some point during the course of the litigation the social media page “disappears,” an
argument of spoliation might be considered.
3. Ask information in your discovery
requests relevant to social media not publicly available. Based on the cases decided
so far, a request, tailored to information
related to the claim or to the alleged injuries,
should be acceptable to the court.
4. Consider how the use of social media
might be useful in the defense of litigation
against your company while keeping in
mind the ethical issues involved. Search for
any ethics or court opinions in the relevant
jurisdiction as to the use of social media.
This area is ripe for further elucidation by
the courts.
5. Determine if the judge assigned to your
case has rendered any opinions or ruled on
any matters involving social media or electronically stored information. Some judges
will be more comfortable than others in
allowing social media to be used to gather
information and evidence at trial.
Conclusion
It’s a new day out there. Before there is
litigation, companies should keep that possibility in mind in the creation of and postings to social media sites. Once litigation
commences, a company should preserve
postings that might arguably be relevant —
and investigate and seek discovery of social
media information from its opponent.
1
2010 WL 3446105 (S.D. Ind. 2010).
2
Id.
3
Id.
4
See also Mancuso v. Florida Metropolitan University,
Inc. (2011); TEKsystems, Inc. v. Hammernick (2010);
Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn.
Oct. 27, 2009); and Ledbetter v. Wal-Mart Stores Inc.,
2009 WL 1067018.
5
Romano v. Steelcase Inc., 30 Misc.3d 426 (N.Y. Sup.
Ct. 2010).
6
Id. at 434.
7
Ct. of Com.Pleas, Jefferson Cty, Pa, no. 113-2010CD,
2010.
8
Id. at 5.
9
Id. at 7.
10
2007 WL7393489 (D.N.J. 2007).
11
Id at 2.
12
2011 WL 2491371 (M.D.Pa 2011).
13
2010 WL 2265668 (MD Tenn., 2010).
14
Philadelphia Bar Op. 2009-02 (March 2009).
15
Pennsylvania Rules of Professional Conduct Rules
8.4(c) and 4.1.
16
Pennsylvania Rules of Professional Conduct 5.3 (c)(1).
17
New York State Bar Association Ethics Opinion 843
(9/10/10).
18
Sic.
19
“Gartner Reveals Five Social Software Predictions
for 2010 and Beyond,” Garnter Newsroom, February
2, 2010. Available at <http://www.gartner.com/it/page.
jsp?id=1293114>. Last accessed August 5, 2011.
20
Id. P. 8.
21
“2011 Electronic Communications Compliance Survey,”
Smarsh, May 2011. Available at <http://www.smarsh.com/
whitepapers>. Last accessed August 5, 2011.
Written by
Melissa Baltz and
Martin Willoughby
Pro Te: Solutio
13