Litigation and Social Media

Given the frequency with which some individuals communicate through social media, content from social networking sites likely contains a treasure trove of discoverable information, but attorneys need to know how to obtain it. The easiest and most cost-efficient way to obtain social media information may be to perform an Internet search directly on social networking sites to determine if opposing parties and witnesses have public profiles or other publicly available information. Surprisingly, many users do not use privacy restrictions, making their account information available to the public. There is nothing wrong with obtaining information that is publicly available. If an adverse party or witness exposes elements of his or her personal information for any and all to see on a social networking site, it is fair game.

However, many people have heightened security privacy settings that will not allow general access to view information. Even with strict privacy settings, information on social networking sites may be discoverable. Courts generally treat social media information the same as other electronic data obtained for discovery purposes. For example, the court in EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010), stated that discovery of social networking sites involves the application of basic discovery principles, just in a novel context. As such, if the individual's social media profile is not available to the public, the most efficient and effective way to secure evidence on a social networking site is through traditional discovery methods, such as interrogatories, requests for production of documents and depositions.

Attorneys making discovery requests now must consider whether and to what extent they will seek information from social networking pages. Interrogatories should request such information as the identification of usernames or screen names, passwords, social networks subscribed to, and the duration of the subscription. Document requests should ask for postings, notes and messages related to the claims and damages in the lawsuit.

The decision in Simply Storage demonstrates how focused discovery requests can be used to access private social network profiles in litigation. There, the EEOC sued Simply Storage for sexual harassment on behalf of two employees. As part of the claim for damages, the EEOC alleged that the employees suffered from depression and stress disorders because of the harassment. During discovery, Simply Storage sought communications and updates from the employees' Facebook and MySpace accounts. In overruling the EEOC's objection to these requests, the court held that the content in the accounts was not shielded from discovery simply because the account was locked or private, and that such information should be produced if it is relevant to a claim or defense. The court concluded that the sites were likely to contain information relevant to claims of severe emotional distress and ordered the parties to provide relevant information from the social networking sites.

To avoid an objection that the request seeks overbroad or irrelevant information, the requests should be narrowly tailored to the issues in the case. In Tompkins v. Detroit Metro Airport, 2012 WL 179320 (E.D. Mich. 2012), the court denied a motion to compel production of Facebook records in a personal injury case, where the airport referenced pictures showing Tompkins holding a dog and pushing a grocery cart, and sought to compel production of Tompkins's entire Facebook account. The court denied the request as overbroad and not relevant since the activities were not inconsistent with Tompkins's claims. The court ruled that the airport may have had a stronger argument had the pictures shown Tompkins playing golf or lifting heavy packages.

In addition to focused written discovery, attorneys should ask questions about social media during depositions of the adverse party and witnesses. These questions can include information about social networking activity, which sites the individual uses, and whether he or she has posted any statements about the case or the events at issue. The attorney should also consider asking if the individual will grant permission without a court order to obtain information from social networking websites.

Direct Requests to Social Networking Sites

While issuing a subpoena directly to social networking websites for user information may seem an effective and viable option for obtaining social media, most social networking companies will generally only produce information with user consent or court order due to limitations set forth under the Stored Communications Act, 18 U.S.C. ' 2702. The Act prevents Internet operators from knowingly revealing electronically stored communications without the “lawful consent of the originator or an addressee or intended recipient.” Attorneys, therefore, should consider requesting opposing parties or witnesses to complete and sign a release allowing social media providers to release information from the user's page. LinkedIn, for example, has its own consent form for such purposes.

Even if the individual uses strict privacy settings on the social networking page, a court may still order the individual to turn over access to the account/page if the account/page contains information that is relevant to the claims at issue. In Romano v. Steelcase, 907 N.Y.S.2d 650 (2010), the court ordered the plaintiff to deliver a consent that would allow the defendant to gain full access to the “plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” The court determined that the information in the “private” portion of the plaintiff's Facebook profile was discoverable because the “public” portion of the profile contained information suggesting the plaintiff had engaged in activities inconsistent with her claimed injuries.

Although the Stored Communications Act was enacted in 1986, well before social networking sites existed, courts are using the Act's definitions to apply to today's technology. For example, the court in Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (S.D. Cal. 2010), ruled that the Act generally applies to social networking sites except in those cases where the information contained on the sites is widely available to the public. Using that rationale, the court granted discovery requests sent directly to Facebook and MySpace, and ordered the sites to produce those messages/wall postings accessible to the public.

Courts will generally allow subpoenas to social networking sites where the information requested is relevant to the lawsuit as shown in Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009). The court denied a protective order for information requested from Facebook, MySpace and Meetup.com, finding that the information requested in the subpoena was relevant to the plaintiff's allegation of physical injury, mental trauma and loss of consortium and was reasonably calculated to lead to the discovery of admissible evidence.

Is Social Media Admissible Evidence?

Once you have obtained information from a social networking site, you have to consider whether the information is admissible. Because it is possible for anyone to set up an account with a pseudonym, information from a social networking site, whether used in state or federal court, must be authenticated, i.e., proven to be what it purports to be. One way to achieve this is with an affidavit from the individual who captured the information stating that the evidence accurately reflects what was on the site at the time that it was captured.

An alternative method of authenticating an individual's social networking page is to ask the individual, either in a deposition or through a request for admission, to confirm that the evidence is, in fact, an accurate copy of his or her postings, messages, etc. The social media information will likely be allowed into evidence as long as evidentiary rules, including relevance and authentication, are met.

The Ethics Involved in Obtaining Social Media

The utility of social networking sites in litigation does not come without some limitations and potential pitfalls, however. While individuals may not have a right to privacy with respect to information on social networking sites, attorneys must be careful when attempting to access information designated as private.

Attorneys should not attempt to contact or “friend” the opposing party through any social networking site, as this approach may constitute impermissible communication with a represented party. Nor should an attorney request someone else to “friend” someone in order to gain access to non-public information.

In recent ethics opinions, both the Philadelphia and New York Bar Associations have addressed the ethical traps in accessing a private profile, and have made it clear that attorneys may not use deceptive or false information to “friend” a party or witness or to request that someone else do so to an adverse witness's private Facebook page in order to discover impeachment evidence. Phil. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02 (March 2009) and N.Y. State Bar Ass'n Comm. On Prof'l Ethics, Opinion 843 (2010).

When seeking information from social networking sites, it is best to use formal discovery devices, including interrogatories, document requests, depositions, releases and subpoenas as discussed above.

Tools in Social Media Discovery

Facebook recently made preserving and producing user information much easier. Users are now able to download an entire copy of their profile in an easily useable format. (Facebook, Download Your Information). A user can simply click on “Account” in the upper right-hand corner, then the link for “Download your information.” Once the user's password is entered, Facebook will compile the user's entire history and send an e-mail to the e-mail address listed on the Facebook account.

The benefit of requesting that an opposing party provide his/her social media information in this manner is that it is easily navigable. It provides a folder with all pictures, videos, or other uploaded files, along with an HTML file that organizes all the information. Because deleted items are not included in the download and because of the risk that a user may purge his account as soon as a request is sent, the attorney should still seek an authorization to obtain the information directly from Facebook.

Another helpful tool in discovery of social media content is X1 Social Discovery (www.x1discovery.com). This is an e-discovery tool designed specifically to collect, index, search, and preview social media content generated by the three most popular systems: Twitter, Facebook, and LinkedIn. One of the tool's best features is its ability to preserve chain of custody with social network content and to capture and preserve its metadata. Everything is captured in read-only mode, so the content cannot be altered.

Conclusion

The increased use of social media has not only changed and influenced how we interact with one another, but it has also impacted how lawsuits are litigated. As such, the use of social media discovery has become a fertile source of obtaining and uncovering information useful to defense in litigation.

There are several methods for obtaining social networking information, ranging from a simple public internet search to a subpoena and court order for disclosure of relevant and admissible information. Although social networking may be beyond the days of handwritten notes and diaries, remember that you can obtain information from social networking sites through traditional discovery methods. Whatever your game plan is for litigating a case, do not miss out on the plethora of useful information out there on social networking sites.

Monica M. Moore is a senior attorney at Nemeth Burwell, P.C. (www.nemethburwell.com), which specializes in employment litigation, traditional labor law and management consultation for private and public sector employers, and works exclusively with management to prevent, resolve and litigate labor and employment disputes.

Social networking sites are not just for social networking. As individuals become more and more comfortable with presenting “private” information to the “public,” information posted on social networking sites can provide a rich source of discovery and can be a game-changer in litigation. The challenges that electronic communication presents during litigation began with e-mails and continues with the proliferation of social media. The increasing use of social networking sites, such as profiles and messages on Facebook and LinkedIn, “tweets” and direct messages on Twitter, and YouTube, has changed the discovery landscape again. This change, however, presents a positive and beneficial discovery tool for companies to use in litigation.

Obtaining Social Media As Evidence

At the outset of litigation, counsel should formally request that the Plaintiff preserve information from social networking sites. This simple practice may guard against the ever-present risk that the Plaintiff will delete or purge his or her account in an effort to eliminate any relevant and/or damaging evidence at the beginning of a lawsuit or as the lawsuit progresses.

Given the frequency with which some individuals communicate through social media, content from social networking sites likely contains a treasure trove of discoverable information, but attorneys need to know how to obtain it. The easiest and most cost-efficient way to obtain social media information may be to perform an Internet search directly on social networking sites to determine if opposing parties and witnesses have public profiles or other publicly available information. Surprisingly, many users do not use privacy restrictions, making their account information available to the public. There is nothing wrong with obtaining information that is publicly available. If an adverse party or witness exposes elements of his or her personal information for any and all to see on a social networking site, it is fair game.

However, many people have heightened security privacy settings that will not allow general access to view information. Even with strict privacy settings, information on social networking sites may be discoverable. Courts generally treat social media information the same as other electronic data obtained for discovery purposes. For example, the court in EEOC v. Simply Storage Management, LLC , 270 F.R.D. 430 (S.D. Ind. 2010), stated that discovery of social networking sites involves the application of basic discovery principles, just in a novel context. As such, if the individual's social media profile is not available to the public, the most efficient and effective way to secure evidence on a social networking site is through traditional discovery methods, such as interrogatories, requests for production of documents and depositions.

Attorneys making discovery requests now must consider whether and to what extent they will seek information from social networking pages. Interrogatories should request such information as the identification of usernames or screen names, passwords, social networks subscribed to, and the duration of the subscription. Document requests should ask for postings, notes and messages related to the claims and damages in the lawsuit.

The decision in Simply Storage demonstrates how focused discovery requests can be used to access private social network profiles in litigation. There, the EEOC sued Simply Storage for sexual harassment on behalf of two employees. As part of the claim for damages, the EEOC alleged that the employees suffered from depression and stress disorders because of the harassment. During discovery, Simply Storage sought communications and updates from the employees' Facebook and MySpace accounts. In overruling the EEOC's objection to these requests, the court held that the content in the accounts was not shielded from discovery simply because the account was locked or private, and that such information should be produced if it is relevant to a claim or defense. The court concluded that the sites were likely to contain information relevant to claims of severe emotional distress and ordered the parties to provide relevant information from the social networking sites.

To avoid an objection that the request seeks overbroad or irrelevant information, the requests should be narrowly tailored to the issues in the case. In Tompkins v. Detroit Metro Airport, 2012 WL 179320 (E.D. Mich. 2012), the court denied a motion to compel production of Facebook records in a personal injury case, where the airport referenced pictures showing Tompkins holding a dog and pushing a grocery cart, and sought to compel production of Tompkins's entire Facebook account. The court denied the request as overbroad and not relevant since the activities were not inconsistent with Tompkins's claims. The court ruled that the airport may have had a stronger argument had the pictures shown Tompkins playing golf or lifting heavy packages.

In addition to focused written discovery, attorneys should ask questions about social media during depositions of the adverse party and witnesses. These questions can include information about social networking activity, which sites the individual uses, and whether he or she has posted any statements about the case or the events at issue. The attorney should also consider asking if the individual will grant permission without a court order to obtain information from social networking websites.

Direct Requests to Social Networking Sites

While issuing a subpoena directly to social networking websites for user information may seem an effective and viable option for obtaining social media, most social networking companies will generally only produce information with user consent or court order due to limitations set forth under the Stored Communications Act, 18 U.S.C. ' 2702. The Act prevents Internet operators from knowingly revealing electronically stored communications without the “lawful consent of the originator or an addressee or intended recipient.” Attorneys, therefore, should consider requesting opposing parties or witnesses to complete and sign a release allowing social media providers to release information from the user's page. LinkedIn, for example, has its own consent form for such purposes.

Even if the individual uses strict privacy settings on the social networking page, a court may still order the individual to turn over access to the account/page if the account/page contains information that is relevant to the claims at issue. In Romano v. Steelcase , 907 N.Y.S.2d 650 (2010), the court ordered the plaintiff to deliver a consent that would allow the defendant to gain full access to the “plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” The court determined that the information in the “private” portion of the plaintiff's Facebook profile was discoverable because the “public” portion of the profile contained information suggesting the plaintiff had engaged in activities inconsistent with her claimed injuries.

Although the Stored Communications Act was enacted in 1986, well before social networking sites existed, courts are using the Act's definitions to apply to today's technology. For example, the court in Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (S.D. Cal. 2010), ruled that the Act generally applies to social networking sites except in those cases where the information contained on the sites is widely available to the public. Using that rationale, the court granted discovery requests sent directly to Facebook and MySpace, and ordered the sites to produce those messages/wall postings accessible to the public.

Courts will generally allow subpoenas to social networking sites where the information requested is relevant to the lawsuit as shown in Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009). The court denied a protective order for information requested from Facebook, MySpace and Meetup.com, finding that the information requested in the subpoena was relevant to the plaintiff's allegation of physical injury, mental trauma and loss of consortium and was reasonably calculated to lead to the discovery of admissible evidence.

Is Social Media Admissible Evidence?

Once you have obtained information from a social networking site, you have to consider whether the information is admissible. Because it is possible for anyone to set up an account with a pseudonym, information from a social networking site, whether used in state or federal court, must be authenticated, i.e., proven to be what it purports to be. One way to achieve this is with an affidavit from the individual who captured the information stating that the evidence accurately reflects what was on the site at the time that it was captured.

An alternative method of authenticating an individual's social networking page is to ask the individual, either in a deposition or through a request for admission, to confirm that the evidence is, in fact, an accurate copy of his or her postings, messages, etc. The social media information will likely be allowed into evidence as long as evidentiary rules, including relevance and authentication, are met.

The Ethics Involved in Obtaining Social Media

The utility of social networking sites in litigation does not come without some limitations and potential pitfalls, however. While individuals may not have a right to privacy with respect to information on social networking sites, attorneys must be careful when attempting to access information designated as private.

Attorneys should not attempt to contact or “friend” the opposing party through any social networking site, as this approach may constitute impermissible communication with a represented party. Nor should an attorney request someone else to “friend” someone in order to gain access to non-public information.

In recent ethics opinions, both the Philadelphia and New York Bar Associations have addressed the ethical traps in accessing a private profile, and have made it clear that attorneys may not use deceptive or false information to “friend” a party or witness or to request that someone else do so to an adverse witness's private Facebook page in order to discover impeachment evidence. Phil. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02 (March 2009) and N.Y. State Bar Ass'n Comm. On Prof'l Ethics, Opinion 843 (2010).

When seeking information from social networking sites, it is best to use formal discovery devices, including interrogatories, document requests, depositions, releases and subpoenas as discussed above.

Tools in Social Media Discovery

Facebook recently made preserving and producing user information much easier. Users are now able to download an entire copy of their profile in an easily useable format. (Facebook, Download Your Information). A user can simply click on “Account” in the upper right-hand corner, then the link for “Download your information.” Once the user's password is entered, Facebook will compile the user's entire history and send an e-mail to the e-mail address listed on the Facebook account.

The benefit of requesting that an opposing party provide his/her social media information in this manner is that it is easily navigable. It provides a folder with all pictures, videos, or other uploaded files, along with an HTML file that organizes all the information. Because deleted items are not included in the download and because of the risk that a user may purge his account as soon as a request is sent, the attorney should still seek an authorization to obtain the information directly from Facebook.

Another helpful tool in discovery of social media content is X1 Social Discovery (www.x1discovery.com). This is an e-discovery tool designed specifically to collect, index, search, and preview social media content generated by the three most popular systems: Twitter, Facebook, and LinkedIn. One of the tool's best features is its ability to preserve chain of custody with social network content and to capture and preserve its metadata. Everything is captured in read-only mode, so the content cannot be altered.

Conclusion

The increased use of social media has not only changed and influenced how we interact with one another, but it has also impacted how lawsuits are litigated. As such, the use of social media discovery has become a fertile source of obtaining and uncovering information useful to defense in litigation.

There are several methods for obtaining social networking information, ranging from a simple public internet search to a subpoena and court order for disclosure of relevant and admissible information. Although social networking may be beyond the days of handwritten notes and diaries, remember that you can obtain information from social networking sites through traditional discovery methods. Whatever your game plan is for litigating a case, do not miss out on the plethora of useful information out there on social networking sites.

Monica M. Moore is a senior attorney at Nemeth Burwell, P.C. (www.nemethburwell.com), which specializes in employment litigation, traditional labor law and management consultation for private and public sector employers, and works exclusively with management to prevent, resolve and litigate labor and employment disputes.