Web Searches As a Litigation Tool

Social networking Web sites and other Internet forums have, to differing degrees, eroded the personal privacy of their users. This erosion is often unintentional; the technology and the information it reveals may not be thoroughly understood, or a third party's ability to collect substantial and qualitatively important amounts of information is underestimated.

In any lawsuit, the collection of information on a party or witness is of paramount importance. What seems to someone like innocuous information ' such as photographs of vacations and daily activities and postings to special interest Web sites ' can materially affect the outcome of a case.

A Wealth of Information

State Rules of Civil Procedure and relevant case law provide attorneys with the tools to collect information on parties and witnesses stored on social networking sites and elsewhere on the Internet. The online world is as real as the terrestrial one, and information that can be very useful in litigation is ready to be discovered and strategically utilized. The topics discussed herein are by no means exhaustive, but are intended to serve as an example to illustrate the types of information that can be obtained through creative electronic detective work.

One of the most popular social networking sites, Facebook, had more than 400 million active users as of February, according to the company (www.facebook.com/press/info.php?statistics). Of these 400 million users, it is likely that some of them will be parties to litigation. Facebook, LinkedIn, MySpace and other social media Web sites are repositories of personal information. The information available on these Web sites is limited by the creativity of the searcher, the posted content and the extent to which access is provided by the user.

In the defense context, a critical component of litigating personal injury lawsuits is determining the extent to which a plaintiff has been injured, if at all. While use of a private investigator is often employed to make this determination, photographs posted on Facebook, which may show vacations, activities and interactions with friends, may also provide insight. In this day and age, a picture really can speak a thousand words ' and it may tell a story that the user may never have intended.

Current digital camera technology provides a tremendous amount of information on the context of a digital photograph. For example, Samsung unveiled a global positioning system camera in the summer of 2009 that automatically geo-tags digital images, recording the latitude and longitude of where in the world each photo is taken. The location data is then automatically embedded into each image's digital file. A party may be excited about the technology, lauded by the camera manufacturer, without realizing how that technology may be used against him or her.

Photographs posted on Facebook have very real consequences in litigation. In January 2010, a welder's claim against manufacturers of welding consumables in multidistrict litigation pending in Cleveland, OH, was dismissed after photographs of him were discovered on Facebook in which he was racing high-speed powerboats. Although the plaintiff had been claiming a severe disability, the Facebook photos clearly showed otherwise and were instrumental in achieving dismissal of his claims.

Case Law

Simply searching under a party or witness's e-mail address may reveal messages they have posted ' possibly on a variety of Web sites ' that may impact their claims or credibility. Reported case law has explicitly permitted a defendant to discover the e-mail addresses of the plaintiff, including Orrell v. Motorcarparts of America Inc., Dist. Court, WD North Carolina, Charlotte Div. 2007, 2007 U.S. Dist. LEXIS 89524, and Washington D.C. Cement Masons Welfare Fund v. Rapid Response Construction Inc., Case No. 1:2008cv03434, Md. Dist. Ct. (Dec. 22, 2008).

Although limited, case law has addressed the discoverability of information posted on social networking sites and has held that, so long as counsel narrowly tailors his or her discovery requests and does not go on the proverbial “fishing expedition,” it is discoverable.

Bass v. Miss Porter's School, Civil No. 3:08cv1807 (JBA), Dist. Court, D. Connecticut 2010 (Jan. 5, 2010), a case apparently involving teasing and taunting of a student at school through Facebook, provides guidance on a party's ability to obtain Facebook pages in discovery. In Bass, upon consent of the parties, a subpoena was served on Facebook compelling it to release “reasonably available data from [p]laintiff's Facebook profile” for a limited period of time. The court then entered an order compelling the plaintiff to produce to the defendant documents responsive to its discovery requests, and to produce a copy of everything produced by Facebook for an in-camera review.

The plaintiff produced approximately 100 pages to defendant, although Facebook provided approximately 750 to the plaintiff pursuant to the subpoena. The court ordered all of the Facebook pages to be produced, and recognized that:

Facebook usage depicts a snapshot of the user's relationships and state of mind at the time of the content's posting. Therefore, relevance of the content of [p]laintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff's own determination of what may be “reasonably calculated to lead to the discovery of admissible evidence.”

Mackelprang v. Fidelity National Title Agency, Case No. 2:06-cv-00788-JCM-GWF, Dist. Court, D. Nevada 2007 (Jan. 9, 2007), is also instructive on the availability and limitations on discovery of the content of social networking Web sites. In Mackelprang, the plaintiff employee brought a sexual harassment claim against the defendant employer, alleging that certain of its employees sent her sexually inappropriate e-mails. The defendant sought an order compelling the plaintiff to execute a release that would have allowed MySpace to produce private messages sent through the plaintiff's MySpace page on the grounds, inter alia, that those messages could be relevant to a suicide attempt by the plaintiff that she blamed on the defendant and “because they may contain statements made by plaintiff and witnesses about the subject matter of this case which could presumably constitute admissions by plaintiff or which could be used to potentially impeach the witnesses' testimony.”

The court denied the defendant's request, holding that “ordering plaintiff to execute the consent and authorization form for the release of all of the private e-mail messages on [p]laintiff's MySpace.com Internet accounts would allow [d]efendants to cast too wide a net for any information that might be relevant and discoverable” and would permit the defendant to obtain other information not relevant to the claims or defenses in the case. The court recognized that the defendant was entitled to discover relevant information on the plaintiff's emotional state, which she had placed at issue in her complaint, and held that certain information on her Myspace page may have contained discoverable statements regarding the cause of her injuries and that may impact her credibility.

The Mackelprang court held: “[C]ertainly, if such information exists in the e-mail messages, defendant is entitled to obtain its production.” Importantly, the court identified the proper manner in which to obtain these materials: “The proper method for obtaining such information, however, is to serve upon plaintiff properly limited requests for production of relevant e-mail communications.”

The Mackelprang decision highlights the need for counsel to be able to argue to the court the precise reasons why the requested content of a social networking Web site is relevant, and that counsel narrowly tailor his or her discovery requests to avoid the inevitable “fishing expedition” argument against production. But in any case in which a plaintiff is claiming disability, at the very least, photographs depicting a plaintiff's post-injury activities are relevant and should be discoverable.

Getting the Right Information

Taking into consideration the case law addressing discovery of Web-based communications, when involved in litigation, it would be wise to draft discovery requests asking specifically for a party's e-mail address, information on membership in and user names for any social networking sites, and any relevant communications, photographs or other documents posted on the Internet. Similarly, this information should be requested from witnesses during their depositions. Once a party's e-mail address and user names are obtained, searches should be run on them to see if further information is available and relevant to a party's defense or a witness's credibility.

For example, a Google search on my personal e-mail address reveals my interest in playing music and related activities in which I have participated; a separate search on the first part of my personal e-mail address without the domain name, which I and many others use as a user name, reveals detailed (and, thankfully, innocuous) postings to various special-interest Web sites. A search on my work e-mail reveals my employer, my work experience and my professional interests. e-Mail addresses and user names can be a rich source of information that can be used to defend claims and impeach witnesses.

The amount of available electronic information is limited only by an attorney's creativity and willingness to push the boundaries of discovery. But in order to use the discovery process to obtain communications made on the Internet, counsel needs more than suspicion or speculation as to what may be contained in ostensibly private communications and must convince the court that the information sought is relevant. The showing of relevance is complicated by the fact that the private nature of such communications in and of itself may prevent counsel from being able to fully identify relevance. The “reasonably calculated to lead to the discovery of admissible evidence” standard does, however, provide a basis for obtaining a broad array of information stored on the Internet.

Even the smallest piece of electronic information can yield helpful results in discovery and provide evidence on the credibility and functional limitations of a plaintiff or witness. (See, “'Voodoo Information': Authenticating Web Pages In Federal Court,” in the January 2010 issue of Internet Law & Strategy at www.ljnonline.com/issues/ljn_internetlaw/8_1/news/153216-1.html.) A thorough search on social networking sites and on an Internet search engine should be performed on all parties and witnesses. The courts give attorneys the tools to discover this information, it should be requested, and if there are objections on the production of this information then it should be tested through a motion to compel.