The Risks, Rewards and Limits of Social Media in Defense Counsel's Arsenal

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1 The Risks, Rewards and Limits of Social Media in Defense Counsel's Arsenal Annarita M. Busbee Noelle A. Abastillas Owen Gleaton Egan Jones & Sweeney, LLP Atlanta, Georgia Social media websites are increasingly becoming a large part of Americans' lives. Nearly four out of five active internet users visit social network sites and blogs. Americans spend more time on social networks and blogs than online games, , videos/movies and instant messaging. Facebook, with an estimated 800 million users, continues to dominate all other social networking sites, reaching seventy percent of active U.S. internet users. Given the impact of social media in Americans lives, social media can be a highly effective tool in defense counsel's arsenal. Americans are increasingly willing to offer the minute details of their lives to the world wide web through social networking sites like Facebook, blogs, online photo-sharing sites like Picasa and Flickr, and dating sites. This article will address the risks, rewards and limitations of utilizing social media in insurance defense litigation. Social Media Rule No. 1: The same evidentiary and procedural rules for preservation and spoliation of evidence apply to social media and electronic evidence. When tendering an evidence preservation letter to defense counsel, it is important to remember that social media evidence must be preserved as well. Given the relatively recent arrival of social media, it is easy to forget this crucial source of evidence. However, defense counsel should not overlook the 1

2 necessity of putting plaintiffs on notice of their duty to preserve social media evidence and the opportunity for spoliation sanctions when plaintiffs delete their potentially damning profiles, wall posts, pictures, comments, s and tweets in bad faith. In Southeastern Mechanical Services, Inc. v. Brody, 657 F. Supp. 2d 1293 (M.D. Fla. 2009), an employer filed an action against its former employees for misappropriation of confidential and trade secret business information and customer lists. Id. at One month after the employees began working for their new employer, the plaintiff sent them a demand letter alleging misappropriation of confidential information and trade secrets. The parent company of the new employer copied and preserved the databases storing the employees accounts. Id. Just five days later, the plaintiff obtained a temporary restraining order requiring the defendants to preserve all computer files, data documents and similar information on their computers. Id. The court also restrained the defendants from destroying any and all information relevant to the plaintiff s claims. Id. The employees then returned their laptops and BlackBerries to their new employer. Id. A forensic investigation was conducted on the BlackBerries. Id. at The BlackBerries contained no data, including s, text messages, calendar items, telephone records, contacts, attachments, or applications. Id. The plaintiff s expert opined that the BlackBerries had been wiped of data by initiating a reset. Id. The Court granted the plaintiff s motion for spoliation sanctions, observing that the parties did not dispute that the defendants used their laptops and BlackBerries and that no s, call logs, or calendar items from these devices were produced. Id. at The Court further noted that the defendants had the motive and opportunities to wipe their BlackBerries of data and three out of the four possible explanations for the wiped BlackBerries were attributable to intentional and deliberate actions. Id. at Finally, the court observed that the plaintiff was prejudiced by the wiping of all s, calendar items, text 2

3 messages, and telephone records from the BlackBerries. Id. at The court granted the plaintiff s motion for sanctions and ordered that the plaintiff was entitled to an adverse jury instruction regarding the defendants' failure to preserve data on their BlackBerries that would have been advantageous to the plaintiff and disadvantageous to them. Id. at The failure to promptly notify the opposing party of the need to preserve electronic evidence may result in a missed opportunity for spoliation sanctions. In Yath v. Fairview Clinics N.P, the plaintiff filed suit against a health care provider after the provider s employee improperly accessed her medical file and posted the plaintiff s photograph on MySpace alongside comments that she had a sexually transmitted disease, she recently cheated on her husband and she was addicted to plastic surgery. 767 N.W.2d 34, (Minn. Ct. App. 2009). The plaintiff moved for spoliation sanctions against one of the defendants, contending that the defendant deleted the browser history and temporary Internet files from her computer in order to hide evidence relevant to the lawsuit. Id. at 41. The plaintiff s attorney faxed a copy of a subpoena duces tecum on the defendant s attorney on July 3, 2007 at 4:51 pm. Id. The subpoena requested that the defendant produce all files on any computer owned by the defendant or her husband. Id. The defendant s attorney did not receive the subpoena copy until July 5, 2007 and she notified the defendant. Id. On July 16, 2007 when the defendant produced her computer for inspection, the plaintiff s computer analyst determined that the computer did not contain any temporary internet files, browser history, internet or browser cache prior to July 3, Id. The analyst also concluded that all internet files were erased and scrubbed clean as of July 3, 2007 at 8:05 pm. Id. The plaintiff asserted that the suspicious timing between service of the subpoena on the defendant s attorney and destruction of the evidence constituted proof that the defendant intentionally destroyed the evidence. Id. 3

4 The trial court declined to order spoliation sanctions, which was affirmed on appeal. Id. at 41. The court of appeals reasoned that the deletion could have been standard computer maintenance and the plaintiff was not personally served with the subpoena until July 5, 2007, which was after the deletion. Id. While the court agreed with the plaintiff that she had a reasonable basis to suspect intentional destruction of evidence, she did not offer sufficient evidence to require a finding of intentional destruction of evidence. Id. at 42. The Yath case underscores the importance of promptly notifying plaintiffs and their counsel of their duty to preserve all electronic and social media evidence. Content generated by plaintiffs on social media sites provide a valuable opportunity to uncover incriminating information that can effectively destroy the plaintiffs claims for damages. Given the relatively recent arrival of social media, defense counsel should not overlook the necessity of notifying plaintiffs and their counsel to preserve all potentially relevant evidence, including social media content generated by the plaintiffs. Social Media Rule No. 2: There is no expectation of privacy in social media. Due to the relatively recent arrival of social media sites and the variety of customizable privacy settings, social media users usually have an unwarranted belief that their Facebook profiles, s, tweets, and posted photographs are not subject to disclosure in litigation. However, recent court decisions evidence a willingness to order plaintiffs to disclose and produce their social media content consistent with the federal and states liberal discovery policies. In the widely cited E.E.O.C. v. Simply Storage Mgmt., LLC case, the U.S. District Court for the Southern District of Indiana specifically rejected the commonly-held contention that social media content is insulated from discovery because it is locked or private. 270 F.R.D. 430, 434 (S.D. Ind. 2010). The court explained, [a]lthough privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a 4

5 proper purpose, a person s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery. Id. (emphasis added). Given users increasing willingness to post even the most mundane details of their lives on the Internet, social media sites can be a treasure trove of incriminating evidence to undermine plaintiffs claims for damages. Courts now uniformly recognize the importance of allowing discovery into these matters. In Holter v. Wells Fargo and Co., the court held that the defendant employer was entitled to discover the plaintiff s social media content because she placed her mental disability and emotional state at issue in her disability discrimination and failure to accommodate lawsuit WL , at *5 (D. Minn. 2011). The plaintiff contended that she suffered from depression and anxiety and she sought $300,000 in emotional distress damages. Id. at *1 The court ordered plaintiff's counsel to review all of plaintiff's social media content from the date she alleged her problems with her employer began to the present, and produce any content or communications that revealed or referred to her emotions, feelings, mental state, depression, anxiety, mental disability and any events that could reasonably be expected to produce a significant emotion, feeling or mental state. Id. To ward off any potential temptation not to disclose all relevant social media content, the court specifically reminded plaintiff s counsel that as an officer of the court, the court trusted that plaintiff s counsel to review and produce any relevant information. Id. While the Holter court s approach reflects a minimally intrusive foray into the plaintiff s social media activities, other courts have ordered plaintiffs to authorize defendants to directly access their social media content. In Romano v. Steelcase, the court ordered the personal injury plaintiff to give the defendant a properly executed consent and authorization for her Facebook and MySpace records, including any records that were previously deleted or archived. 907 N.Y.S 2d 650, 657 (Sup. Ct. Suffolk Co. 2010). In In re Air Crash near Clarence 5

6 Ctr. on Feb. 12, 2009 and Glazer v. Fireman s Fund Ins. Co., the courts required the plaintiffs to produce relevant electronic communications, including social media accounts, s, text messages and instant messages WL , at *6 (W.D.N.Y Dec. 20, 2011); 2012 WL , at *3 (S.D.N.Y. 2012). The courts noted in dicta that the defendants could request written authorizations from the plaintiffs to obtain such communications from the plaintiff, if the plaintiff s production was insufficient. Id. Social Media Rule No. 3: Social media content is of limited value unless you can authenticate it. Defense counsel can often run into the challenge of properly authenticating social media content because of the plaintiff s inevitable contentions of fraud, tampering or hacking. Evidence that the party s name is written as the author of an or that the communication comes from a social networking Web site like Facebook or MySpace with the party s name usually is not sufficient, by itself, to authenticate the electronic communication as having been authored or sent by the party. See Com. v. Purdy, 459 Mass. 442, 450 (2011); Com. v. Williams, 456 Mass. 857 (2010). Given the relative ease with which other individuals can access a party s social media accounts without the party s authorization, courts are understandably wary of admitting social media content into evidence without proper authentication. At this stage, both the federal and states rules of evidence do not appear to set a different standard for authentication of social media and electronic evidence. For example, under Fed. R. Evid. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. One of the most common methods of authenticating evidence is to provide testimony of a witness with knowledge that an item is what it is claimed to be. Fed. R. Evid. 901(b). However, with respect to Facebook posts, s, tweets and other common forms of social media communications, unless the individual 6

7 who purportedly wrote the communication admits that he or she did so or the witness personally observed the individual write and send the communication, the testimony of a witness will usually only establish that the communication was sent from the individual s social media account. Given the likelihood of individuals remaining logged into their accounts while leaving their computers and cell phones unattended and hackers well-documented ability to compromise website security features, proof that a communication came from a particular account, without additional authenticating evidence, is generally inadequate proof of authorship. State v. Eleck, 130 Conn. App. 632, 639 (2011). Counsel can overcome the authentication hurdle by offering forensic computer evidence and other corroborating evidence. In Griffin v. State, the Maryland Supreme Court suggested that a proponent of an electronic document could search the computer of the purported author for Internet history or stored documents or the proponent could seek authenticating information from the commercial host of the , cell phone messaging, or social networking account. 419 Md. 343, (2011). In United States v. Siddiqui, s were properly authenticated where the s contained the defendant s address, but also factual details known to the defendant that were independently corroborated by telephone calls. 235 F.3d 1318, (11th Cir. 2000). In Dickens v. State, text messages were properly authenticated where the text messages contained details that only a few people knew and they were sent from a phone in the possession of the defendant. 175 Md. App. 231, (2007). Finally, in People v. Valdez, copies of a MySpace page were properly authenticated as the defendant s MySpace page and admitted into evidence over the defendant s objection where the pages contained personal photographs of the defendant and greetings to the defendant by name from other MySpace users, and the ability to add and delete content was password-protected. 201 Cal. App. 4th 1429, (2011). The Court held that these factors tended to suggest that the defendant, as the owner of the page, controlled the posted 7

8 material and there was sufficient evidence for the trier of fact to determine that the proffered writing was authentic. Id. at Conclusion While social media has only been around for a few years and no significant legislation has been implemented to address this new evidentiary medium since the federal Stored Communications Act in 1986, courts have met the litigation challenges posed by social media content by adapting the existing procedural and evidentiary framework. Given the explosive growth of social media websites in just the past two years, social media sites are sure to play an increasingly crucial role in insurance defense litigation now and in the near future. 8