October 14, 2010

Social Media in Civil Litigation

Social media is here to stay. You've heard the statistics: If Facebook were a country, it would be the third largest in the world, approaching 600 million users. Twitter users post 90 million "tweets" per day. What exploded from college dorm rooms is not just for teenagers and college students anymore. Social networking use among Internet users ages 50 and older nearly doubled from 2009 to 2010. The fastest growing demographic of social-media users are those over age 55. And social media is not just limited to Facebook, Twitter, YouTube, MySpace and LinkedIn. There are also hundreds of sites popular outside the U.S. such as hi5, RenRen and Orkut.

The impact of social media cannot be ignored. It is influencing not just how we communicate, but how lawyers litigate. But as is often the case, technological innovation outpaced the law, and for some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation. Recently, however, a growing number of court decisions and ethics opinions have addressed this issue. Below, we discuss some ways to use social media in litigation and, perhaps the bigger challenge, how to get ahold of it in the first place.

Social Media as Evidence

When it comes to the courtroom, social media is not just being used in family and criminal litigation. Its usage in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. Magistrates have offered to "friend" parties for the purpose of reviewing evidence in camera. All sorts of evidence discoverable through social media are easy to imagine. For example, evidence of actual confusion in a trademark case, or evidence of reputation in a libel case. It will likely not be long before a "SuperPoke" will form the basis of a sexual-harassment claim. (SuperPoke, for the uninitiated, is a Facebook application in which a user can send messages to their friends. Some more provocative "pokes" allow a user to "spank," "shower with" and "fling a thong at" somebody.)

Securing the Evidence: Public Search or Discovery Request

Often, individuals fail to restrict access to their social-media profile pages, and information about their background, location, reputation, credibility and friends is available to the general public, including an adverse party and the adverse party's counsel. Thus, as soon as litigation seems likely, it is important to complete a thorough Internet search for information related to the opposing party (and likely adverse witnesses), not just on Google, but directly on social-media sites.

Once information is found, it should be preserved with a date stamp—either by old-fashioned printing or electronically. Lest there is any doubt about the ethics of accessing a user's publicly available profile, at least two bar associations have generally approved the practice. The seminal ethics opinion came from the Philadelphia Bar Association, which concluded that an attorney could not gain access to an adverse witness's Facebook and MySpace pages by asking a third party (whose name the witness would not recognize) to "friend" the witness. The bar association did determine, however, that the attorney could attempt to "friend" the witness himself, using his real name, as that would not constitute "conduct involving dishonesty, fraud, deceit or misrepresentation." Phila. Bar Assoc., Opinion 2009-02 (March 2009). More recently, the New York State Bar Association issued an opinion confirming that lawyers may access another party's social media site for potential impeachment material "as long as the party's profile is available to all members in the network and the lawyer neither ‘friends' the other party nor directs someone else to do so." N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

If an opposing party's social media page is not available to the general public, then the most efficient way to secure evidence on it is through discovery requests. For example, interrogatories might request identification of "any screen names or other identities used on computer sites or for social networking" and document requests might ask for social-media postings and messages related to the claims and damages in the lawsuit. Along with document requests—and just as a party might request release of medical records—consider requesting that the opposing party complete and sign a form that authorizes Facebook and other social-media sites to disclose information on the party's page. Some social media companies, such as LinkedIn, have developed their own consent forms. (Consent forms, however, may already be a thing of the past. In early October, Facebook announced a new application in which users can download everything they have ever posted on their Facebook account.) If opposing counsel objects to the production of relevant evidence, move to compel production. Depending on the case, social media—and the deponent's use of it—should also be a topic of deposition questioning.

But will a judge really make the other side produce this information? As courts have recently recognized, there is no real difference between discovery of social media and discovery of other electronically stored information. For example, in Equal Employment Opportunity Cmm'n v. Simply Storage Mgmt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010), the defendant asked for photographs, videos, postings and profiles from the claimants' Facebook and MySpace pages to secure evidence relating to their mental health. The EEOC objected to the request and the defendant moved to compel. The court noted that discovery of social media simply "requires the application of basic discovery principles in a novel context." Consistent with other decisions, the court rejected the claimants' privacy arguments, noting that "a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery." In other words, if content is fit to be shared with 500 Facebook friends, it is likely fit for discovery in a lawsuit. The court ultimately held that the document requests were too broad and narrowed the requests to what was at issue in the case: profiles, postings or messages and social media applications for the claimants that "reveal, refer, or relate to any emotion, feeling or mental state [or] that could reasonably be expected to produce a significant emotion, feeling or mental state."

Just last month, a New York state court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages, even though she used strict privacy settings. Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010). In the underlying lawsuit, the plaintiff alleged back and neck problems. But defendants noticed that her publicly available pages painted a different picture. They moved to compel production of the rest of her nonpublic profile. The court granted the motion and noted that the plaintiff's "private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence." Citing Facebook's and MySpace's own policies, which warn users that they should have no expectation of privacy, the court noted that "when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social-networking sites else they would cease to exist." See also Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering the production of the plaintiff's entire Facebook profile); Ledbetter v. Wal-Mart Stores Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (denying plaintiffs' motion for protective order regarding their Facebook, MySpace and Meetup.Com content). Importantly, the Romano court did not order Facebook and MySpace to produce the data. Instead, the court ordered the plaintiff to execute a consent form authorizing Facebook and MySpace to provide the defendant's access.  

Subpoena Facebook? Don't Bother

Some may ask, why go through all this trouble? Why not just subpoena Facebook or MySpace directly? While this may seem an effective shortcut, the social-media hosts will typically only produce such information by 1) user consent or 2) court order. And court orders compelling social media companies to produce documents responsive to a subpoena without user consent are generally hard to come by, as illustrated by a recent federal court decision, Crispin v. Christian Audigier Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010). In Crispin, defendants served subpoenas on Facebook and MySpace. The plaintiff moved to quash the subpoenas on grounds they violated the Stored Communications Act (SCA), which has strict disclosure requirements for electronic data stored by third parties. The court agreed and held that private-messaging functions on Facebook and MySpace were no different than e-mail and that the sites did not have to produce the messages—in fact, they were prohibited from doing so.

Notably, the court did not resolve whether public wall postings are covered under the SCA and remanded that issue to the magistrate for further proceedings. The decision confirms that the best way to get the data is directly from the user. And as mentioned above, for Facebook users at least, users can now more easily retrieve data and download their entire account with a few key strokes.

E-Discovery: Playing Defense

With the dawn of e-mail, the face of discovery changed forever and a whole new cottage industry was born: "e-discovery." Does social media present another sea change and new set of challenges? It may. Earlier this year, Gartner, Inc. predicted that social media will replace e-mail as the primary vehicle for interpersonal communications for 20 percent of business users by 2014. Some universities have plans to do away with e-mail and use social media instead. As the Simply Storage, Romano, Bass and Ledbetter cases make clear, discovery of social media is not much different than other forms of discovery and is a source that should be considered at Rule 26(f) conferences and as discovery unfolds. 

Thus, litigators need to be ready, not just to make the most of social media but also to protect their clients against spoliation claims. Social media will no doubt impact preservation, collection, review and production efforts. To the extent that social-media content is like other forms of electronically stored information, the same legal standards regarding preservation, collection, review and production apply. A key consideration to determining a party's obligations is whether the social-media content is in the party's possession, custody or control. This determination is often complicated because of the various ways in which social media content can be created, stored and accessed. Unlike e-mail or other electronic documents, documents and data stored on social media sites are ever-changing and are often stored in the "cloud." As a result, parties should consider early on whether relevant information may be found on a social media site, and if so, whether or not they are required to or wish to preserve and/or collect such information. Because of the expanded use of social media, the costs of preservation, collection, review and production that have long been associated with e-mail must now be considered with respect to social media.

If relevant data exists, what is the best way to preserve it? Certain vendors, such as Iterasi and Smarsh, offer programs to preserve and capture dynamic web pages, including social-media sites. Other programs, such as Adobe Acrobat, can capture Web pages and preserve them in static format. As far as production of social media, unless the parties are willing to put significant resources into producing it in near-native format, parties may have to be content with the old-fashioned approach: printing and producing in hard copy, or accepting a copy of that which may be downloaded from the site by the user. In addition to collection and production, counsel should consider authentication and admissibility issues as they prepare for summary judgment and trial.

Conclusion

While social media are a fun and dynamic way to stay in touch with old classmates, friends and colleagues, and current and potential business contacts, it has also created a whole new set of considerations for litigators. As courts grapple with these issues, lawyers and their clients should make a conscious effort to be on the forefront of these issues and consider whether discovery of social media is appropriate for their particular cases.
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