How to Obtain Social Media Data for Defending Lawsuits

Sample Requests

• Do you now have or have you ever had a social media profile such as, but not limited to: [specify social media sites]? If so, please produce a full and complete digital copy of all information contained on each site, free of redaction and alteration.
• Produce a complete archive of plaintiff's Facebook account(s) (or any other social media account) as of [date of incident alleged in complaint]. This archive can be obtained through [describe method of obtaining information, described below, under the section entitled How to Retrieve Data for Discovery].
• Produce printed pages of the entire content of all blogs, logs, link logs, sketch blogs, photo blogs, tumble logs or art logs that you, or anyone with any knowledge of the facts and circumstances underlying the allegations in your complaint, have added content to since [date of incident alleged in complaint]. Also produce drafts, if any, of any blogs that you created before posting them online.
• Produce all documents relating to your participation in any business or social networking site, including but not limited to [specify social media sites] and any others, including printouts of all historical content, including posts, comments and photographs.
• Produce any profile posting or message, including status updates, Tweets, wall comments, causes joined, groups joined, activity streams, blog entries and/or social networking site applications relating to you, for the period from [the date of the incident alleged in the complaint] through the present, that reveals, refers to, or relates to your emotions, feelings or mental state.

Plaintiffs' Arguments

In their answers to requests such as those above, plaintiff's counsel will often argue that, for various reasons, they do not have to produce the requested information. As any good practitioner will do, you need to anticipate these responses and be able to argue the contrary position in clear support of discoverability. To be effective, you need a basic knowledge of how social media operates. Often, a successful challenge to a refusal to provide social media content in discovery will rely on knowledge of the site that is hosting the information. Indeed, there are significant differences in how social media hosts store material and provide future access to users. Before we outline specific guidance, here are examples of the objections made by plaintiffs counsel, and defense counsel's arguments explaining why such objections are not viable.

Plaintiff's argument: The information sought is protected by the “work product doctrine.” Defense counsel's response : The attorney work product privilege applies only to substantive aspects of any protected communication. It is without merit that any aspect of social media interaction was done on the advice of counsel, and the mere action of posting to third parties outside the attorney-client relationship is a waiver of any such claim to privilege or protection of any sort. It is the plaintiff's burden to demonstrate an applicable common law or statutory privilege.

Plaintiff's argument: The interrogatory is overly broad and seeks information that is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence. Defense counsel's response : Courts throughout the country are routinely permitting the discovery of social networking site data. E.E.O.C. v. Simply Storage Management (S.D.Ind. 2010). This information is discoverable and should be disclosed. Please produce a list of all social networking websites and e-mail addresses, or provide an unqualified response disclaiming any such responsive documents by [date discovery responses are due]. Further, the trend is for courts to allow access to social media user content where that information might lead to discoverable information pertaining, for example, to the onset of a particular injury. Robinson v. Jones Lang LaSalle Americas (D. Or. Aug. 29, 2012). Finally, the information requested pertains to the specific allegations made in plaintiff's complaint and the information sought is likely to contradict or counter those allegations. Del Gallo v. City of New York (N.Y. Sup. Ct. 2014).

Plaintiff's argument: The request seeks to invade the privacy interests of the plaintiff and, therefore, s/he objects to producing the requested material. Defense counsel's response : By its very nature, social media is communication that is publicly transmitted. Consequently, there is no valid argument that plaintiff's social media profiles are private. Doe v. Rutherford Cnty., Tenn., Bd. of Educ. (M.D. Tenn. Aug. 18, 2014).

How to Retrieve Data for Discovery

When obtaining the documentation from claimants, it is also useful to know how the user is able to extract such information, so that one can explain to plaintiff's counsel, or possibly a judge, exactly how to go about downloading the documents for production. Similar to Facebook, many other social media sites are coming out with ways for users to download their content, in many instances even after any such materials have been “taken down” or deleted by the user.

Twitter

Twitter has a function that allows users to download all of their Tweets. Information relating to this process is available under Twitter's settings. Users can go into their settings, and under “Content,” go to “Your Twitter Archive” and click “Request your archive.” Once there, users can request a file containing all their information, going all the way back to their first Tweet. After requesting the file, a link will be e-mailed to the user's e-mail address listed on his or her Twitter account. The Tweets also contain date stamps, or metadata, on the Tweet itself, so the information regarding when the Tweet was posted is readily available.

Instagram

Instagram is associated with a third-party application called Instaport, which helps users download their photographs. Users can sign into Instagram, choose an export option and then download their photos. The application allows users to save and back up their photographs outside of Instagram. The user's Instagram account stays intact throughout the process of backing up the photos.

Flickr

Flickr has a third-party site called Bulkr, which assists users in downloading all of their photographs and videos. The site unfortunately does not download the photographs in their original size, but it does have four different size options. Bulkr will back up a user's entire photostream; download the photographs to a folder; download all accompanying titles, tags, and descriptions for each photograph; and allow the user to preview the images before they are downloaded. However, the site limits users to 500 photographs and videos per download.

Snapchat

Snapchat is a bit more difficult to use for discovery purposes. Its system is designed to automatically delete all opened Snaps from its servers. Once all recipients have viewed a Snap, the Snap is automatically deleted. According to the site, “[o]pened Snaps typically cannot be retrieved form Snapchat's servers by anyone, for any reason.” Also, unopened Snaps are deleted after 30 days. However, there are ways for Snaps to be saved. One such method is taking a screenshot of the Snap and saving it to the smartphone's photo library. However, since a screenshot captures a frozen image on the phone at the time of the shot, it is not possible to screenshot entire videos or “stories” sent via Snapchat. Since most pictures transmitted by this system were likely taken by the user's device, it may be possible to obtain a Snap, even if the Snap is no longer available on the system, by way of a forensic interrogation of the phone. This can certainly be the subject of a court order, if such an approach is warranted.

Recently, new applications were created that can access deleted Snaps or save Snaps for repeated viewing. Two of these third-party applications are SnapSave and SnapHack. These applications save Snapchat photos and videos that are received through Snapchat. Both applications save the photos and videos without alerting the sender. When one downloads SnapSave, all previously received Snaps can be seen, but they cannot be opened. However, the application allows the user to save and repeatedly view new Snaps received after downloading the application. Neither of these applications is affiliated with Snapchat.

Expired Snaps are accessible on Android phones under the phone's data/data/com.snapchat.android folder. The data stored in the com.snapchat.android_preferences.xml file contains metadata about expired snaps and unexpired snaps.

For Apple iPhones, one can use a program called iFile, which allows users to find expired Snaps. Investigators have looked into these folders, or directories, and been able to find and view expired video, or .MOV, files. Additional video files in this folder are labeled “filtered” and “output;” however, these files are “overwritten” as soon as another video is recorded on Snapchat. Users can also capture Snaps by hooking their iPhone up to their computer and using a third-party file-browsing application such as iFunBox to navigate to the Snapchat/tmp folder in the phone's file system. Once in this folder, the user can re-watch all Snapchat videos and copy them onto the computer being used. By using this type of application, the user can also avoid having Snapchat send a notification to the original sender that the Snap is being saved by the recipient.

One downside to these applications is that the Snaps take about six hours to extract from a folder called RECEIVED_IMAGES_SNAPS, in which the .NOMEDIA files are saved. Nevertheless, these methods of locating and saving expired Snaps can be very useful to counsel when seeking discovery of Snapchat files from the claimant. Discovery requests should request that the claimant download these applications or seek the information from the folders contained on their smartphone.

Vine

Vine is a public site, so all videos posted by a claimant should be readily accessible for discovery purposes. Therefore, discovery requests should be aimed at requesting information regarding: 1) whether or not the claimant has a vine account; and 2) the names or titles of all videos the claimant has posted or commented on.

LinkedIn

On LinkedIn, private messages and other communications with LinkedIn members may be discoverable if specifically sought in a discovery request that seeks information directly related to the issues at hand. The discovery request should include any evidence that the claimant has posted information or messaged LinkedIn members regarding anything that contradicts her claims.

Usernames and Passwords

Under certain circumstances, courts also are beginning to require that claimants provide their username and password to opposing counsel in order to obtain social media content. Largent v. Reid (Pa. C.P. Franklin Nov. 8, 2011). This is the best method for counsel to obtain access to this information. However, this access typically is limited, and therefore counsel must be quick to obtain the information via the methods outlined above, because once the opportunity has passed, it likely will not come again.

Counsel also should be aware of other considerations, such as the age and socioeconomic status of the claimant, in order to be more efficient in making discovery requests and requests for admission. For example, Twitter and Facebook use is relatively consistent across ages and socioeconomic statuses. However, more young adults ' ages 18 to 29 ' and those with at least some college education are using Instagram and Pinterest.

Additionally, a significantly higher percentage of women ' 33% of online adult women compared with 8% of men ' are using Pinterest. Furthermore, LinkedIn draws a crowd that generally is more educated, employed and brings in a higher income (38% of LinkedIn users have a post-college education, 27% are employed; and 78% make over $50,000 per year, including 38% who report making over $75,000 per year). These considerations are important to take into account so that time and money are not wasted on requests that are unlikely to result in the desired information.

The Bottom Line

People use social media all the time, whether to post pictures of what they did over the summer, vent about stressors in their daily lives or engage in a multitude of other activities. These communications can be exceedingly relevant in litigation, because often a claimant's comments or posts on social media outlets may contradict the claims they have asserted. Hence, obtaining and preserving social media communications through discovery is a necessary tactic to learn in order to achieve a successful outcome for your client.

Eric P. Conn is a senior associate in Segal McCambridge Singer & Mahoney's Detroit office. He primarily concentrates his practice in premises liability, negligence and product liability. Emily T. Acosta is an associate in the firm's Chicago office, where she represents clients in products liability, transportation, labor and employment, construction, insurance, professional liability and toxic tort matters. This article also appeared in Corporate Counsel, an ALM affiliate of this newsletter.

Obtaining social media user content under most circumstances is extremely difficult unless you use the correct strategy. Often, this will include relying on traditional discovery requests such as interrogatories, requests to produce and requests to admit. However, simply sending discovery requests without a basic understanding of the information available is a fool's errand. It is pivotal that a practitioner who wants to conduct formal discovery of social media user content understand how each site stores and communicates its data. Armed with information, the informed attorney may well reap huge rewards when engaging in digital discovery.

Requests for Admission and Production

Once a matter has moved to litigation, and investigation has shown that the claimant has one or more social media accounts, traditional discovery methods should be used to obtain the information housed in these accounts. Requests to produce should be developed, and should be targeted at specific information contained on the claimant's accounts. It is important to skip the generic request for “any and all” documents, and instead specify the types of photos, video or Snaps sought in order to avoid responses that assert the request is overly burdensome, overbroad or not reasonably calculated to lead to the discovery of admissible evidence. Note that each sample request to produce set forth below can be modified for use as a request for admission.

Sample Requests

• Do you now have or have you ever had a social media profile such as, but not limited to: [specify social media sites]? If so, please produce a full and complete digital copy of all information contained on each site, free of redaction and alteration.
• Produce a complete archive of plaintiff's Facebook account(s) (or any other social media account) as of [date of incident alleged in complaint]. This archive can be obtained through [describe method of obtaining information, described below, under the section entitled How to Retrieve Data for Discovery].
• Produce printed pages of the entire content of all blogs, logs, link logs, sketch blogs, photo blogs, tumble logs or art logs that you, or anyone with any knowledge of the facts and circumstances underlying the allegations in your complaint, have added content to since [date of incident alleged in complaint]. Also produce drafts, if any, of any blogs that you created before posting them online.
• Produce all documents relating to your participation in any business or social networking site, including but not limited to [specify social media sites] and any others, including printouts of all historical content, including posts, comments and photographs.
• Produce any profile posting or message, including status updates, Tweets, wall comments, causes joined, groups joined, activity streams, blog entries and/or social networking site applications relating to you, for the period from [the date of the incident alleged in the complaint] through the present, that reveals, refers to, or relates to your emotions, feelings or mental state.

Plaintiffs' Arguments

In their answers to requests such as those above, plaintiff's counsel will often argue that, for various reasons, they do not have to produce the requested information. As any good practitioner will do, you need to anticipate these responses and be able to argue the contrary position in clear support of discoverability. To be effective, you need a basic knowledge of how social media operates. Often, a successful challenge to a refusal to provide social media content in discovery will rely on knowledge of the site that is hosting the information. Indeed, there are significant differences in how social media hosts store material and provide future access to users. Before we outline specific guidance, here are examples of the objections made by plaintiffs counsel, and defense counsel's arguments explaining why such objections are not viable.

Plaintiff's argument: The information sought is protected by the “work product doctrine.” Defense counsel's response : The attorney work product privilege applies only to substantive aspects of any protected communication. It is without merit that any aspect of social media interaction was done on the advice of counsel, and the mere action of posting to third parties outside the attorney-client relationship is a waiver of any such claim to privilege or protection of any sort. It is the plaintiff's burden to demonstrate an applicable common law or statutory privilege.

Plaintiff's argument: The interrogatory is overly broad and seeks information that is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence. Defense counsel's response : Courts throughout the country are routinely permitting the discovery of social networking site data. E.E.O.C. v. Simply Storage Management (S.D.Ind. 2010). This information is discoverable and should be disclosed. Please produce a list of all social networking websites and e-mail addresses, or provide an unqualified response disclaiming any such responsive documents by [date discovery responses are due]. Further, the trend is for courts to allow access to social media user content where that information might lead to discoverable information pertaining, for example, to the onset of a particular injury. Robinson v. Jones Lang LaSalle Americas (D. Or. Aug. 29, 2012). Finally, the information requested pertains to the specific allegations made in plaintiff's complaint and the information sought is likely to contradict or counter those allegations. Del Gallo v. City of New York (N.Y. Sup. Ct. 2014).

Plaintiff's argument: The request seeks to invade the privacy interests of the plaintiff and, therefore, s/he objects to producing the requested material. Defense counsel's response : By its very nature, social media is communication that is publicly transmitted. Consequently, there is no valid argument that plaintiff's social media profiles are private. Doe v. Rutherford Cnty., Tenn., Bd. of Educ. (M.D. Tenn. Aug. 18, 2014).

How to Retrieve Data for Discovery

When obtaining the documentation from claimants, it is also useful to know how the user is able to extract such information, so that one can explain to plaintiff's counsel, or possibly a judge, exactly how to go about downloading the documents for production. Similar to Facebook, many other social media sites are coming out with ways for users to download their content, in many instances even after any such materials have been “taken down” or deleted by the user.

Twitter

Twitter has a function that allows users to download all of their Tweets. Information relating to this process is available under Twitter's settings. Users can go into their settings, and under “Content,” go to “Your Twitter Archive” and click “Request your archive.” Once there, users can request a file containing all their information, going all the way back to their first Tweet. After requesting the file, a link will be e-mailed to the user's e-mail address listed on his or her Twitter account. The Tweets also contain date stamps, or metadata, on the Tweet itself, so the information regarding when the Tweet was posted is readily available.

Instagram

Instagram is associated with a third-party application called Instaport, which helps users download their photographs. Users can sign into Instagram, choose an export option and then download their photos. The application allows users to save and back up their photographs outside of Instagram. The user's Instagram account stays intact throughout the process of backing up the photos.

Flickr

Flickr has a third-party site called Bulkr, which assists users in downloading all of their photographs and videos. The site unfortunately does not download the photographs in their original size, but it does have four different size options. Bulkr will back up a user's entire photostream; download the photographs to a folder; download all accompanying titles, tags, and descriptions for each photograph; and allow the user to preview the images before they are downloaded. However, the site limits users to 500 photographs and videos per download.

Snapchat

Snapchat is a bit more difficult to use for discovery purposes. Its system is designed to automatically delete all opened Snaps from its servers. Once all recipients have viewed a Snap, the Snap is automatically deleted. According to the site, “[o]pened Snaps typically cannot be retrieved form Snapchat's servers by anyone, for any reason.” Also, unopened Snaps are deleted after 30 days. However, there are ways for Snaps to be saved. One such method is taking a screenshot of the Snap and saving it to the smartphone's photo library. However, since a screenshot captures a frozen image on the phone at the time of the shot, it is not possible to screenshot entire videos or “stories” sent via Snapchat. Since most pictures transmitted by this system were likely taken by the user's device, it may be possible to obtain a Snap, even if the Snap is no longer available on the system, by way of a forensic interrogation of the phone. This can certainly be the subject of a court order, if such an approach is warranted.

Recently, new applications were created that can access deleted Snaps or save Snaps for repeated viewing. Two of these third-party applications are SnapSave and SnapHack. These applications save Snapchat photos and videos that are received through Snapchat. Both applications save the photos and videos without alerting the sender. When one downloads SnapSave, all previously received Snaps can be seen, but they cannot be opened. However, the application allows the user to save and repeatedly view new Snaps received after downloading the application. Neither of these applications is affiliated with Snapchat.

Expired Snaps are accessible on Android phones under the phone's data/data/com.snapchat.android folder. The data stored in the com.snapchat.android_preferences.xml file contains metadata about expired snaps and unexpired snaps.

For Apple iPhones, one can use a program called iFile, which allows users to find expired Snaps. Investigators have looked into these folders, or directories, and been able to find and view expired video, or .MOV, files. Additional video files in this folder are labeled “filtered” and “output;” however, these files are “overwritten” as soon as another video is recorded on Snapchat. Users can also capture Snaps by hooking their iPhone up to their computer and using a third-party file-browsing application such as iFunBox to navigate to the Snapchat/tmp folder in the phone's file system. Once in this folder, the user can re-watch all Snapchat videos and copy them onto the computer being used. By using this type of application, the user can also avoid having Snapchat send a notification to the original sender that the Snap is being saved by the recipient.

One downside to these applications is that the Snaps take about six hours to extract from a folder called RECEIVED_IMAGES_SNAPS, in which the .NOMEDIA files are saved. Nevertheless, these methods of locating and saving expired Snaps can be very useful to counsel when seeking discovery of Snapchat files from the claimant. Discovery requests should request that the claimant download these applications or seek the information from the folders contained on their smartphone.

Vine

Vine is a public site, so all videos posted by a claimant should be readily accessible for discovery purposes. Therefore, discovery requests should be aimed at requesting information regarding: 1) whether or not the claimant has a vine account; and 2) the names or titles of all videos the claimant has posted or commented on.

LinkedIn

On LinkedIn, private messages and other communications with LinkedIn members may be discoverable if specifically sought in a discovery request that seeks information directly related to the issues at hand. The discovery request should include any evidence that the claimant has posted information or messaged LinkedIn members regarding anything that contradicts her claims.

Usernames and Passwords

Under certain circumstances, courts also are beginning to require that claimants provide their username and password to opposing counsel in order to obtain social media content. Largent v. Reid (Pa. C.P. Franklin Nov. 8, 2011). This is the best method for counsel to obtain access to this information. However, this access typically is limited, and therefore counsel must be quick to obtain the information via the methods outlined above, because once the opportunity has passed, it likely will not come again.

Counsel also should be aware of other considerations, such as the age and socioeconomic status of the claimant, in order to be more efficient in making discovery requests and requests for admission. For example, Twitter and Facebook use is relatively consistent across ages and socioeconomic statuses. However, more young adults ' ages 18 to 29 ' and those with at least some college education are using Instagram and Pinterest.

Additionally, a significantly higher percentage of women ' 33% of online adult women compared with 8% of men ' are using Pinterest. Furthermore, LinkedIn draws a crowd that generally is more educated, employed and brings in a higher income (38% of LinkedIn users have a post-college education, 27% are employed; and 78% make over $50,000 per year, including 38% who report making over $75,000 per year). These considerations are important to take into account so that time and money are not wasted on requests that are unlikely to result in the desired information.

The Bottom Line

People use social media all the time, whether to post pictures of what they did over the summer, vent about stressors in their daily lives or engage in a multitude of other activities. These communications can be exceedingly relevant in litigation, because often a claimant's comments or posts on social media outlets may contradict the claims they have asserted. Hence, obtaining and preserving social media communications through discovery is a necessary tactic to learn in order to achieve a successful outcome for your client.

Eric P. Conn is a senior associate in Segal McCambridge Singer & Mahoney's Detroit office. He primarily concentrates his practice in premises liability, negligence and product liability. Emily T. Acosta is an associate in the firm's Chicago office, where she represents clients in products liability, transportation, labor and employment, construction, insurance, professional liability and toxic tort matters. This article also appeared in Corporate Counsel, an ALM affiliate of this newsletter.