Using Social Media Content to Defend Employment-Related Lawsuits

What Is Social Media?

As pervasive as the phrase “Social Media” is, it is not an easy term to define. Social Media formats, or platforms, are varied (blogs, Twitter, Facebook, Google+) and evolving (from Friendster to Instagram), with new forms emerging every day (Snapchat). The Sedona Conference Primer on Social Media identifies some typical characteristics of Social Media content that are useful in thinking about its potential application in litigation:

• Social media is Internet-based; participants access the content through the Web.
• Social media content is shared; either among a designated group ( e.g. , via subscription or via the preference of the content supplier) or with the entire Web.
• Social media content is interactive; viewers can participate in the content by commenting on it or sharing it with others.
• Social media content tends towards the personal.
• Social media content is typically informal, conversational, candid, unstructured, and often unedited.

The Sedona Conference, The Sedona Conference Primer on Social Media, 1 (2012).

Formats of social media can include text, graphics, audio, or video. From the above descriptions, it is easy to see how social media might be a treasure trove of evidence of a party's state of mind, or impeachment evidence. However, the varied nature of the forms of social media content, and the fluid manner in which it changes as users add, revise, and share content, presents complex challenges in the context of discovery.

Is Social Media Discoverable?

Social media content is discoverable under the Federal Rules of Civil Procedure. Broadly speaking, the federal rules provide that “any matter, not privileged, that is relevant to the claim or defense of any party” is discoverable. Fed. R. Civ. P. 26(b)(1); Robinson v. Jones Lang LaSalle Americas, No. 3:12-cv-00127-PK, 2012 WL 3763545, at *1 (D. Or. Aug 29, 2012). The rules further provide that a party can request “electronically stored information ' including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations ' stored in any medium from which information can be obtained.” Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). As one court put it, “[t]he fact that [relevant information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” EEOC. v. Orig. Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560, 2012 WL 5430974, at *1 (D. Colo. Nov. 7, 2012). Thus, when relevant to a claim or defense, social media content must be produced. EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). Indeed, social media content is frequently requested in discovery and used in a wide range of cases including criminal law, personal injury law, family law, and employment law.

Generally, discovery requests should be directed to the opposing party. Requests to social media providers may be necessary to obtain the content in a preferred format, or to obtain the content's corresponding metadata (discussed further below). However, the federal Electronic Communications Privacy Act and Stored Communications Act, which have been interpreted to include social media content, present major obstacles to obtaining private social media content from a third-party provider without prior consent from the user or subscriber. See 18 U.S.C ' 2510 et. seq.; 18 U.S.C ' 2701 et. seq.; see also Viacom International Inc. v. YouTube Inc., 253 F.R.D. 256, 264-64 (S.D.N.Y 2008) (denying motion to compel private YouTube videos, but compelling YouTube to produce related non-content data such as the number of times each video has been viewed). The boundaries of these statutes (and their state-level equivalents), as well as the case law interpreting them, should be carefully studied before a third-party subpoena is issued to a provider.

Ensuring Preservation

First and foremost, in litigation, Internet-based electronic information such as social media content needs to be treated in a more immediate manner than data found on hardware (i.e., an individual desktop computer). Content found on social networking sites such as Facebook and LinkedIn rapidly changes as information is added and subtracted. Prolific social media users will typically post several times a day, thus altering information already on the website. Further, social networking sites typically retain discarded data for very short periods of time, if at all. All of these factors mean that social media evidence can disappear quickly.

Communicate early with opposing counsel regarding your desire to obtain social media content and their client's obligation to preserve it. Though an agreement with opposing counsel regarding this type of discovery is preferable, such consultation is not always possible or practical. It is important to establish the obligation to preserve social media content via a preservation hold notice while you proceed with other steps necessary to obtaining it. Along these lines, consider sending a preservation letter to the third-party social media provider. Though the provider does not necessarily have a duty to preserve, communicating with it regarding preservation (including offering to pay the related costs) may be your best bet for saving the desired content while you work on getting the employee's consent or a court order.

The Scope of Discoverable Social Media Content

As with all discovery, the request for social media content must be properly limited to relevant content. Mackelprang v. Fidelity Nat'l Title Agency of Nev., Inc., No. 2:06-cv-00788, 2007 WL 119149, at *8 (D. Nev. Jan. 9, 2007). For example, in Mackelprang, the court denied the employer's motion to compel all private MySpace communications for a particular account where the employer had no information regarding with whom the plaintiff was communicating or what the content of the messages was, and therefore no way to show that its request was relevant. Id. at *2. However, the court indicated that a discovery request for social media communications specifically regarding allegations in the lawsuit, or which discussed the plaintiff's alleged emotional distress, would have been appropriate. Id. at *8.

With regard to employees' claims for emotional distress damages, some courts have taken quite a broad view of what is relevant. In Simply Storage Management, the EEOC brought a Title VII action against Simply Storage, alleging sexual discrimination on behalf of a group of employees, and asserting emotional distress damages. 270 F.R.D. at 432. The employer requested electronic copies of “complete profiles on Facebook and MySpace ' and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications” over a three-year period. Id.

The EEOC argued that the production of social media content should be limited to content that directly addressed or commented on matters alleged in the complaint. Id . at 434. On the basis that this request was targeted at two claimants who alleged severe and not “garden-variety” emotional distress, the court merely narrowed the scope of the request from all the requested content to content that “reveal[s], refer[s], or relate[s] to any emotion, feeling or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” Id. at 436, 437.

Subsequent cases have upheld similarly worded requests that relate to only “garden-variety” emotional distress claims thereby broadening discovery of social media content for these types of claims. See, e.g., Robinson, 2012 WL 3763545, at *2; Holter v. Wells Fargo and Co., 281 F.R.D. 340, 344 (D. Minn. 2011); Original Honeybaked Ham, 2012 WL 5430974, at *3; but see contra, Ghiacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116 (E.D. N.Y. 2013) (stating that routine status updates are not relevant to a “garden-variety” emotional distress claim, and limiting a request for any posting regarding the plaintiff's emotional or psychological well-being to any reference to emotional distress suffered in connection with the events in the complaint).

Courts have also granted requests for social media content that reflects communications among employees. For example, requests for production of any SNS communications “between Plaintiff and any current or former employees, or which in any way refer ' to her employment or this lawsuit” have generally been approved by the courts. See, e.g., Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 572 (C.D. Cal. 2012); accord Robinson 2012 WL 3763545, at *2; Coates v. Mystic Blue Cruises, Inc., No. 11 C 1986, 2012 WL 3860036, at *1 (N.D. Ill. Aug. 9, 2012).

At least one court compelled production of social media content that would not otherwise have been relevant for the purpose of potential impeachment. Coates , 2012 WL 3860036, at *2. In Coates , the court required the employee plaintiff to produce all social media communications between herself and other coworkers on this basis. Id. at *1.

Privacy Concerns

Generally, where privacy or confidentiality concerns have been raised in an attempt to limit or deny access to social media content, courts have responded that the information is still discoverable and privacy concerns should be dealt with through a protective order. See, e.g., Simply Storage, 270 F.R.D. at 434.

Social Media Collection and Production

Frequently, static screenshots ' pictures of the computer screen as it looks to the common user ' are offered in discovery as the best evidence of social media content. However, this is a limited way of viewing such information, as all you can glean from screenshots is what appears on the standard user interface at a single moment in time. This may be insufficient to get the proper context of the content sought in discovery. It can also be difficult to authenticate. Metadata ' information typically found underneath the user interface where the code resides, such as authorship, time of posting, recipients of a post or message, and location of postings ' can help provide that context. As such, specifically requesting the metadata of the social media content can be crucial to recognizing its value to your case.

All this data (i.e., what the standard user sees when he or she visits a SNS as well as the underlying metadata) can be collected via forensic imaging, which provides the requestor with the full user experience as well as the ability to search the metadata. Further, when social media is collected with a proper chain of custody and all associated metadata is preserved, authenticity can be easier to establish.

Every social media platform is different and custom-built for its intended use. Sites like Facebook, Twitter, and Instagram are primarily used to post photographs, messages, or to hold online conversations. Online storage sites such as DropBox or GoogleDrive are frequently used by employees to temporarily store documents for use at home. Networking sites like LinkedIn can be used to communicate with prospective employers. Knowledge of how the sites are structured is imperative because the collection/preservation for each site requires its own methodology. Thus, when looking for more content than static screenshots, you may want to ensure, either via agreement or court order, that the opposing party collects the requested social media content in a forensically sound and defensible manner.

There are a number of tools and methods available to conduct these types of collections. Tools such as Internet Evidence Finder and Cellibrite can be used to “mine” social media data found on myriad electronic sources. For instance, Internet Evidence Finder enables the recovery of data from social networking communications, instant messenger chats, cloud-based artifacts, file sharing apps, pictures and videos. Cellebrite enables the extraction and analysis of data created on mobile devices, including social media posts. As previously noted, by using a forensically sound methodology, the reviewer can glean everything about the social media content ' from the names of all the recipients of a post, to any comments made to the post, to when the post was last updated. The right tool in the right hands will allow the reviewer of the information to get the full user experience ' how the website is navigated, the hidden metadata fields that can help reveal authorship and file sharing, and so forth.

Conclusion

Social media has become a major form of communication for most Americans. As such, employers should consider it a source of potentially relevant evidence when defending a case brought by an employee. Such content, when requested from the employee/social media subscriber, is generally discoverable when properly tailored. Third-party requests to the social media provider, when necessary, should only be made after a careful review of applicable privacy laws. Requiring that the collection of social media content enable its review in a dynamic format which, provides essential context to the evidence and also ensures admissibility, is key to utilizing such content to its full potential in litigation.

Jessica Neufeld is an attorney with Munsch, Hardt, Kopf & Harr, P.C. in Austin, TX. David S. Weber is general counsel of Digital Discovery.

For much of America, exposure to some type of social media is a part of everyday life. Fifty-seven percent of all American adults use Facebook ' the most preferred social networking site (or SNS) ' and 52% of Internet users who do not use Facebook live with someone who does. Sixty-four percent of Facebook users visit the site on a daily basis. (6 New Facts About Facebook, Feb. 3, 2014, http://tinyurl.com/kv8vyop. Pew Research Center, Social Media Update 2013, Dec. 30, 2013, http://tinyurl.com/ngkvy98).

Reasons for such use include viewing photos or videos, sharing things with many people at once, receiving support from people in their network, getting feedback on content they have posted, and keeping up with news and current events. (Pew Research Center's Internet Project Survey, Aug. 7-Sept. 16, 2013, http://tinyurl.com/kv8vyop).

Because social media is a major vehicle for interacting with the world and exchanging information, it is no surprise that such a ubiquitous aspect of American culture would contain information relevant to litigation. It is therefore important that attorneys be able to recognize when and how social media content may provide valuable evidence in a case. Indeed, the Model Rules of Professional Responsibility suggest it is an attorney's obligation to become familiar with social media technology and the benefits and risks of its use. See Model Rules of Prof'l Conduct Rule 1.1 cmt. This article looks at how to request social media content in discovery as well how best to preserve and collect such content in the context of employment litigation.

What Is Social Media?

As pervasive as the phrase “Social Media” is, it is not an easy term to define. Social Media formats, or platforms, are varied (blogs, Twitter, Facebook, Google+) and evolving (from Friendster to Instagram), with new forms emerging every day (Snapchat). The Sedona Conference Primer on Social Media identifies some typical characteristics of Social Media content that are useful in thinking about its potential application in litigation:

• Social media is Internet-based; participants access the content through the Web.
• Social media content is shared; either among a designated group ( e.g. , via subscription or via the preference of the content supplier) or with the entire Web.
• Social media content is interactive; viewers can participate in the content by commenting on it or sharing it with others.
• Social media content tends towards the personal.
• Social media content is typically informal, conversational, candid, unstructured, and often unedited.

The Sedona Conference, The Sedona Conference Primer on Social Media, 1 (2012).

Formats of social media can include text, graphics, audio, or video. From the above descriptions, it is easy to see how social media might be a treasure trove of evidence of a party's state of mind, or impeachment evidence. However, the varied nature of the forms of social media content, and the fluid manner in which it changes as users add, revise, and share content, presents complex challenges in the context of discovery.

Is Social Media Discoverable?

Social media content is discoverable under the Federal Rules of Civil Procedure. Broadly speaking, the federal rules provide that “any matter, not privileged, that is relevant to the claim or defense of any party” is discoverable. Fed. R. Civ. P. 26(b)(1); Robinson v. Jones Lang LaSalle Americas, No. 3:12-cv-00127-PK, 2012 WL 3763545, at *1 (D. Or. Aug 29, 2012). The rules further provide that a party can request “electronically stored information ' including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations ' stored in any medium from which information can be obtained.” Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). As one court put it, “[t]he fact that [relevant information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” EEOC. v. Orig. Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560, 2012 WL 5430974, at *1 (D. Colo. Nov. 7, 2012). Thus, when relevant to a claim or defense, social media content must be produced. EEOC v. Simply Storage Management, LLC , 270 F.R.D. 430, 434 (S.D. Ind. 2010). Indeed, social media content is frequently requested in discovery and used in a wide range of cases including criminal law, personal injury law, family law, and employment law.

Generally, discovery requests should be directed to the opposing party. Requests to social media providers may be necessary to obtain the content in a preferred format, or to obtain the content's corresponding metadata (discussed further below). However, the federal Electronic Communications Privacy Act and Stored Communications Act, which have been interpreted to include social media content, present major obstacles to obtaining private social media content from a third-party provider without prior consent from the user or subscriber. See 18 U.S.C ' 2510 et. seq.; 18 U.S.C ' 2701 et. seq.; see also Viacom International Inc. v. YouTube Inc. , 253 F.R.D. 256, 264-64 (S.D.N.Y 2008) (denying motion to compel private YouTube videos, but compelling YouTube to produce related non-content data such as the number of times each video has been viewed). The boundaries of these statutes (and their state-level equivalents), as well as the case law interpreting them, should be carefully studied before a third-party subpoena is issued to a provider.

Ensuring Preservation

First and foremost, in litigation, Internet-based electronic information such as social media content needs to be treated in a more immediate manner than data found on hardware (i.e., an individual desktop computer). Content found on social networking sites such as Facebook and LinkedIn rapidly changes as information is added and subtracted. Prolific social media users will typically post several times a day, thus altering information already on the website. Further, social networking sites typically retain discarded data for very short periods of time, if at all. All of these factors mean that social media evidence can disappear quickly.

Communicate early with opposing counsel regarding your desire to obtain social media content and their client's obligation to preserve it. Though an agreement with opposing counsel regarding this type of discovery is preferable, such consultation is not always possible or practical. It is important to establish the obligation to preserve social media content via a preservation hold notice while you proceed with other steps necessary to obtaining it. Along these lines, consider sending a preservation letter to the third-party social media provider. Though the provider does not necessarily have a duty to preserve, communicating with it regarding preservation (including offering to pay the related costs) may be your best bet for saving the desired content while you work on getting the employee's consent or a court order.

The Scope of Discoverable Social Media Content

As with all discovery, the request for social media content must be properly limited to relevant content. Mackelprang v. Fidelity Nat'l Title Agency of Nev., Inc., No. 2:06-cv-00788, 2007 WL 119149, at *8 (D. Nev. Jan. 9, 2007). For example, in Mackelprang, the court denied the employer's motion to compel all private MySpace communications for a particular account where the employer had no information regarding with whom the plaintiff was communicating or what the content of the messages was, and therefore no way to show that its request was relevant. Id. at *2. However, the court indicated that a discovery request for social media communications specifically regarding allegations in the lawsuit, or which discussed the plaintiff's alleged emotional distress, would have been appropriate. Id. at *8.

With regard to employees' claims for emotional distress damages, some courts have taken quite a broad view of what is relevant. In Simply Storage Management, the EEOC brought a Title VII action against Simply Storage, alleging sexual discrimination on behalf of a group of employees, and asserting emotional distress damages. 270 F.R.D. at 432. The employer requested electronic copies of “complete profiles on Facebook and MySpace ' and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications” over a three-year period. Id.

The EEOC argued that the production of social media content should be limited to content that directly addressed or commented on matters alleged in the complaint. Id . at 434. On the basis that this request was targeted at two claimants who alleged severe and not “garden-variety” emotional distress, the court merely narrowed the scope of the request from all the requested content to content that “reveal[s], refer[s], or relate[s] to any emotion, feeling or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” Id. at 436, 437.

Subsequent cases have upheld similarly worded requests that relate to only “garden-variety” emotional distress claims thereby broadening discovery of social media content for these types of claims. See, e.g., Robinson, 2012 WL 3763545, at *2; Holter v. Wells Fargo and Co. , 281 F.R.D. 340, 344 (D. Minn. 2011); Original Honeybaked Ham, 2012 WL 5430974, at *3; but see contra, Ghiacchetto v. Patchogue-Medford Union Free Sch. Dist. , 293 F.R.D. 112, 116 (E.D. N.Y. 2013) (stating that routine status updates are not relevant to a “garden-variety” emotional distress claim, and limiting a request for any posting regarding the plaintiff's emotional or psychological well-being to any reference to emotional distress suffered in connection with the events in the complaint).

Courts have also granted requests for social media content that reflects communications among employees. For example, requests for production of any SNS communications “between Plaintiff and any current or former employees, or which in any way refer ' to her employment or this lawsuit” have generally been approved by the courts. See, e.g., Mailhoit v. Home Depot U.S.A., Inc. , 285 F.R.D. 566, 572 (C.D. Cal. 2012); accord Robinson 2012 WL 3763545, at *2; Coates v. Mystic Blue Cruises, Inc. , No. 11 C 1986, 2012 WL 3860036, at *1 (N.D. Ill. Aug. 9, 2012).

At least one court compelled production of social media content that would not otherwise have been relevant for the purpose of potential impeachment. Coates , 2012 WL 3860036, at *2. In Coates , the court required the employee plaintiff to produce all social media communications between herself and other coworkers on this basis. Id. at *1.

Privacy Concerns

Generally, where privacy or confidentiality concerns have been raised in an attempt to limit or deny access to social media content, courts have responded that the information is still discoverable and privacy concerns should be dealt with through a protective order. See, e.g., Simply Storage, 270 F.R.D. at 434.

Social Media Collection and Production

Frequently, static screenshots ' pictures of the computer screen as it looks to the common user ' are offered in discovery as the best evidence of social media content. However, this is a limited way of viewing such information, as all you can glean from screenshots is what appears on the standard user interface at a single moment in time. This may be insufficient to get the proper context of the content sought in discovery. It can also be difficult to authenticate. Metadata ' information typically found underneath the user interface where the code resides, such as authorship, time of posting, recipients of a post or message, and location of postings ' can help provide that context. As such, specifically requesting the metadata of the social media content can be crucial to recognizing its value to your case.

All this data (i.e., what the standard user sees when he or she visits a SNS as well as the underlying metadata) can be collected via forensic imaging, which provides the requestor with the full user experience as well as the ability to search the metadata. Further, when social media is collected with a proper chain of custody and all associated metadata is preserved, authenticity can be easier to establish.

Every social media platform is different and custom-built for its intended use. Sites like Facebook, Twitter, and Instagram are primarily used to post photographs, messages, or to hold online conversations. Online storage sites such as DropBox or GoogleDrive are frequently used by employees to temporarily store documents for use at home. Networking sites like LinkedIn can be used to communicate with prospective employers. Knowledge of how the sites are structured is imperative because the collection/preservation for each site requires its own methodology. Thus, when looking for more content than static screenshots, you may want to ensure, either via agreement or court order, that the opposing party collects the requested social media content in a forensically sound and defensible manner.

There are a number of tools and methods available to conduct these types of collections. Tools such as Internet Evidence Finder and Cellibrite can be used to “mine” social media data found on myriad electronic sources. For instance, Internet Evidence Finder enables the recovery of data from social networking communications, instant messenger chats, cloud-based artifacts, file sharing apps, pictures and videos. Cellebrite enables the extraction and analysis of data created on mobile devices, including social media posts. As previously noted, by using a forensically sound methodology, the reviewer can glean everything about the social media content ' from the names of all the recipients of a post, to any comments made to the post, to when the post was last updated. The right tool in the right hands will allow the reviewer of the information to get the full user experience ' how the website is navigated, the hidden metadata fields that can help reveal authorship and file sharing, and so forth.

Conclusion

Social media has become a major form of communication for most Americans. As such, employers should consider it a source of potentially relevant evidence when defending a case brought by an employee. Such content, when requested from the employee/social media subscriber, is generally discoverable when properly tailored. Third-party requests to the social media provider, when necessary, should only be made after a careful review of applicable privacy laws. Requiring that the collection of social media content enable its review in a dynamic format which, provides essential context to the evidence and also ensures admissibility, is key to utilizing such content to its full potential in litigation.

Jessica Neufeld is an attorney with Munsch, Hardt, Kopf & Harr, P.C. in Austin, TX. David S. Weber is general counsel of Digital Discovery.