SOCIAL MEDIA. What Every Litigator Needs to Know

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1 SOCIAL MEDIA What Every Litigator Needs to Know Social media content can make or break a case and should be carefully considered at every stage of litigation. As with other emerging technologies, jurisprudence in this area is evolving rapidly and lawyers must keep abreast of legal developments to effectively use social media content as a litigation tool. istockphoto.com/mattjeacock 34 June/July 2014 practicallaw.com

2 NORMAN C. SIMON PARTNER KRAMER LEVIN NAFTALIS & FRANKEL LLP Norm has a diverse litigation practice and has been recognized by Chambers USA, Legal 500 US and New York Super Lawyers. As chair of the firm s Electronic Discovery Practice, he advises clients on data retention obligations, has litigated electronic discovery disputes and has conducted internal investigations concerning data loss. SAMANTHA V. ETTARI ASSOCIATE KRAMER LEVIN NAFTALIS & FRANKEL LLP Samantha s practice focuses on general commercial litigation, with an emphasis on real estate, regulatory, bankruptcy and complex contract disputes. She is a member of the firm s Electronic Discovery Practice and a coeditor of its Electronic Discovery Update. Practical Law The Journal Litigation June/July

3 As technology progresses and sources of electronically stored information (ESI) proliferate, social media content is a part of the litigation equation that increasingly cannot be ignored. Disputes over social media content have arisen in all types of actions, including trademark infringement and other intellectual property disputes, advertising, employment, personal injury, matrimonial, class actions and breach of contract. From the pre-litigation stage through discovery and trial, social media content often is critical to a party s claim or defense. It can also pose significant challenges. Counsel must be aware of the potential impact of social media on all phases of litigation, as well as some ethical minefields concerning its use. Counsel should consider the benefits and pitfalls associated with social media platforms and content early on or may find themselves at a distinct disadvantage. This article highlights key issues surrounding social media in litigation, including: The use of social media in the early stages of litigation. Special considerations for discovery and authentication of social media content. The role social media can play in a jury trial. EARLY STAGES OF LITIGATION Even before a complaint has been drafted or filed, lawyers should consider the potential applications of social media. In particular, social media may be a factor in: The parties obligations to preserve and collect relevant evidence. The pre-litigation investigation of potential adverse parties, witnesses and opposing counsel. The parties ability to locate and serve adverse parties. PRESERVATION It is widely held that the duty to preserve evidence arises when a party reasonably anticipates litigation (Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010); see also Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation )). If litigation is anticipated, any potentially relevant social media content should be preserved (see Howell v. Buckeye Ranch, Inc., No , 2012 WL , at *1-2 (S.D. Ohio Oct. 1, 2012)). As discussed below, a party s failure to properly preserve this content could result in sanctions. Litigation Holds and Collection As with other potentially relevant ESI, social media content should not be overlooked in preservation or collection efforts (see Hawkins v. Coll. of Charleston, No , 2013 WL , at *3 (D.S.C. Nov. 15, 2013); Reid v. Ingerman Smith LLP, No , 2012 WL , at *1 (E.D.N.Y. Dec. 27, 2012) ( there is no dispute that social media information may be a source of relevant information that is discoverable ); EEOC v. Original Honeybaked Ham Co. of Ga., No , 2012 WL , at *1 (D. Colo. Nov. 7, 2012) (likening certain social media content to an Everything About Me folder that is voluntarily shared with others)). Lawyers drafting a litigation hold should consider specifically referencing social media platforms, including any associated and collectable metadata, among the potential sources of information that custodians should preserve. Similarly, counsel should consider identifying social media platforms as potential sources of relevant information to be preserved in any demand letter sent to an adversary requesting preservation of relevant ESI. Counsel may use printouts, screenshots or web crawlers to capture, gather and store static images of social media content. However, counsel should bear in mind that these formats may be inconsistent with the format sought in a document request (see below Document Requests for Social Media Content) or subpoena and may be insufficient for authentication (see below Authenticating Social Media). Therefore, to collect social media content in preparation for a dispute, litigants should consider engaging an e-discovery vendor with appropriate expertise to harness the full range of content and metadata associated with the ESI (see The Sedona Conference, Primer on Social Media, at (Oct. 2012), available at thesedonaconference.org). Search Litigation Hold Toolkit for a collection of resources to help counsel preserve documents and implement a litigation hold. Search Document Preservation Letter (Demand) for a sample letter requesting that an opposing party or a non-party preserve relevant evidence and information, with explanatory notes and drafting tips. Spoliation Exposure Digital realities increase the risk that a party or its counsel may be accused of spoliation. This is in part because not all clients appreciate the potential exposure to spoliation sanctions, given how easy it can be to delete, alter or eliminate a digital file or social media post. Counsel should specifically instruct clients not to destroy or alter social media content where it may be relevant to an anticipated or ongoing litigation. Generally, for a court to impose a spoliation sanction for deleting or altering social media content, the moving party must show: The content was in the alleged spoliator s control. The alleged spoliator had an obligation to preserve the content (or could reasonably foresee that the content would be discoverable). The content was destroyed or significantly altered with a culpable state of mind (some courts require only negligence). The content was relevant to claims or defenses. (See Painter v. Atwood, D.D.S., No , 2014 WL , at *8 (D. Nev. Mar. 18, 2014) (sanctions imposed on the plaintiff where she intentionally deleted certain Facebook posts relevant to her allegations of sexual harassment and employment conditions after retaining counsel and filing litigation); Hawkins, 2013 WL , at *2 (sanctions imposed on the plaintiff who deleted private Facebook messages and other Facebook content after filing suit where his mental state was relevant to 36 June/July 2014 practicallaw.com

4 his discrimination case); Katiroll Co. v. Kati Roll & Platters, Inc., No , 2011 WL , at *4 (D.N.J. Aug. 3, 2011) (sanctions imposed on the defendant for changing his Facebook profile photograph where his previous photograph reflected allegedly infringing trade dress).) The remedies for spoliation of social media content are often based on the spoliating party s mental state in destroying or altering the content and the level of prejudice to the opposing party. Remedies can include: An adverse inference jury instruction that the deleted or altered social media content was harmful to the spoliating party s case (see Allied Concrete Co. v. Lester, 736 S.E.2d 699, (Va. 2013); Painter, 2014 WL , at *9; Gatto v. United Air Lines, Inc., No , 2013 WL , at *3-4 (D.N.J. Mar. 25, 2013) (adverse inference instruction was appropriate where the plaintiff deactivated his Facebook account, resulting in the loss of all associated data during ongoing litigation)). Evidence preclusion (see Torres v. Lexington Ins. Co., 237 F.R.D. 533, 534 (D.P.R. 2006) (the plaintiff was precluded from introducing evidence of ongoing mental anguish where she deleted social media accounts depicting an active social life)). Dismissal of claims or a judgment in favor of the prejudiced party (see Painter, 2014 WL , at *7-8 (acknowledging that dismissal may be a remedy for social media spoliation but declining to impose that harsh remedy); Hawkins, 2013 WL , at *4-6 (same)). Fines or attorneys fees and costs (see Katiroll Co., 2011 WL , at *1; Allied Concrete Co., 736 S.E.2d at 703). Search District of New Jersey: Spoliation Sanctions for Plaintiff Who Deleted Facebook Account for more on the Gatto decision. Counsel should not instruct or suggest that their clients intentionally alter, destroy or disable social media content. In Allied Concrete, a personal injury and wrongful death action, the plaintiff s lawyer advised his client to clean up his Facebook page. As a result of this instruction, the plaintiff deactivated his Facebook page and deleted over a dozen photographs, including one of the plaintiff holding a beer can and wearing a shirt reading, I [heart] hot moms, upon reactivating the account. Noting that these types of images might have undermined his claims for damages resulting from his wife s death, the trial court issued an adverse inference jury instruction, which included the following language: In violation of the rules of this Court, before responding to the discovery, [the plaintiff] intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered. You should presume that the photograph or photographs he deleted from his Facebook account were harmful to his case. The trial court also levied substantial fines for the spoliation on both the plaintiff ($180,000) and his counsel ($542,000). (Allied Concrete Co., 736 S.E.2d at ) Search Practical Tips for Handling E-Discovery for information on key issues companies should consider to ensure compliance with their obligations to preserve and produce ESI. PRE-LITIGATION INVESTIGATION When preparing a complaint or conducting due diligence in anticipation of litigation, lawyers should, at a minimum, conduct internet and social media research on the subject matter, potential parties, opposing counsel and potential witnesses. However, before searching the social media content of a potential adversary or witness, counsel must understand: The applicable ethics rules for conducting pre-litigation investigations. How a user s privacy settings may impact the mechanics or ethics of pre-litigation investigation. Ethical Considerations Many state and city bar associations have issued ethical guidelines and opinions on the appropriate ways to access social media content. Most of these rules stem from the basic When preparing a complaint or conducting due diligence in anticipation of litigation, lawyers should, at a minimum, conduct internet and social media research on the subject matter, potential parties, opposing counsel and potential witnesses. Practical Law The Journal Litigation June/July

5 prohibition on directly or indirectly contacting a represented party, absent consent from that party s lawyer (see Model Rules of Prof l Conduct R. 4.2). Generally, a lawyer investigating a case: May access the public portions of a party s or witness s social media account, regardless of whether or not the party or witness is represented. May not access private or non-public portions of a represented party s or witness s social media account if the lawyer is required to friend or follow the account or account user. May friend or follow an unrepresented party or a witness on social media if the lawyer does not engage in deceptive behavior. Social media content typically is deemed public if the information is available to anyone viewing a social media network without the need for permission from the person whose account is being viewed, including content available to all members of a social media network and content that is accessible without authorization to non-members. (See New York State Bar Ass n (NYSBA), Social Media Ethics Guidelines No. 3.A cmt. (Mar. 18, 2014) (2014 NYSBA Guidelines), available at nysba.org; see also NYSBA Comm. On Prof l Ethics, Op. 843 (2010).) Using deception to friend or follow an unrepresented individual is uniformly deemed unethical, based largely on Rule 4.1 of the Model Rules of Professional Conduct, which prohibits a lawyer from making a false statement of, or failing to disclose, a material fact to a third person. However, the interpretation of deception differs across jurisdictions. In some jurisdictions, including New York, a lawyer can join a social network and connect with or friend an unrepresented individual without disclosing the reasons for the request, as long as it does not involve any type of trickery. The lawyer cannot, for example, create a different or false name or profile to mask his identity. (See 2014 NYSBA Guidelines No. 3.B; New York City Bar Ass n (NYCBA) Comm. on Prof l & Judicial Ethics, Formal Op (2010).) The lawyer instead must use her full name and an accurate profile. Other states require a lawyer to affirmatively disclose her role in a dispute or litigation and identify the client and matter, reasoning that the failure to do so is an omission of a material fact and thereby amounts to deceptive conduct (see N.H. Bar Ass n Ethics Comm., Advisory Op /05 (2012); San Diego County Bar Ass n Legal Ethics Comm., Op (2011); see also The Sedona Conference Primer on Social Media, at 57 ( it may be a violation of the Rules of Professional Conduct for a lawyer to request greater access to a user s account under pretext, without being forthright about the request and fully disclosing the purpose of the request )). Some bar associations go further, requiring attorneys to inform the social media account holder of the intended use of the information, whether generally for litigation or specifically to impeach a witness (see Phila. Bar Ass n Prof l Guidance Comm., Op , at 3 (2009)). Privacy Implications Privacy settings are crucial if a potential party or witness seeks to limit pre-discovery access to ESI. A user s privacy settings often dictate how much information a search may reveal. Therefore, counsel should try to protect a client s social media content from an adversary by maximizing the client s privacy settings. Conversely, an investigating lawyer should seek out as much relevant, public social media content as possible, in part because it can form the basis for disclosure of non-public information (see below Relevance Considerations). Notably, the investigating lawyer s own privacy settings are also important in certain circumstances. For example, some social media platforms, such as LinkedIn, do not allow a lawyer to surreptitiously view social media content without first selecting privacy options to make the lawyer anonymous. Without that setting adjustment, the user will receive notification that her account was viewed. In addition to alerting an adversary or witness to the lawyer s investigative efforts, these notifications have been considered inappropriate and unethical contact when researching a potential jury pool or sitting juror (see 2014 NYSBA Guidelines No. 5.B cmt.) (see below Jury Selection). Moreover, the investigation of social media content can be highly effective to help develop a case, frame potential causes of action or resolve a dispute before reaching full-blown discovery. For example, in a 2010 case, a Mississippi teenager sued her school district on First Amendment grounds to bring a same-sex date to her high school prom. The school district mooted the plaintiff s preliminary injunction application by representing to the court that the plaintiff would be allowed to attend the prom with her girlfriend. (McMillen v. Itawamba County Sch. Dist., 702 F. Supp. 2d 699, 706 (N.D. Miss. 2010).) However, only a handful of students attended that prom. Social media investigation revealed that a secret and heavily attended alternative prom, from which the plaintiff was excluded, was held simultaneously at a different location. Students posted photographs from the secret prom on Facebook, which any Facebook user was able to view because of the students limited privacy settings. The plaintiff s lawyers were able to print and take screenshots of the secret prom photographs to amend the complaint, referencing the misrepresentations made to the court in connection with the preliminary injunction hearing. The amended complaint prompted the school district to enter into an offer of judgment that, among other things, included a damages award to the plaintiff and required revisions to the school district s antidiscrimination policies. (McMillen v. Itawamba County Sch. Dist., No (N.D. Miss. 2010).) SERVICE OF PROCESS Service is an area in which technological advances, including the proliferation of social media platforms, are reshaping procedural law. Over the past decade, many courts have embraced service of process via , where due process is satisfied and the relevant state or international statutes or treaties allow for it (see, for example, Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 910 N.Y.S.2d 418, 422 (1st Dep t 2010) (collecting cases); but see Joe Hand Promotions, Inc. v. Shepard, No , 2013 WL , 38 June/July 2014 practicallaw.com

6 POPULAR SOCIAL MEDIA SITES Social media websites and applications connect their users to one another, to new content (including user-generated content), and to communication channels that allow for an instant and a permanent online presence. Many sites include traditional communication capabilities within their proprietary technologies, such as , chat, blogging and others. A common function of most social media sites is the ability for users to post links online for others to see. Social media sites can hold a lot of relevant ESI and are treasure troves for both informal investigation and formal discovery. To best leverage these rich sources of potentially relevant information, counsel should become familiar with at least some of the most popular social media sites, services and applications. Facebook. A social networking service where members can connect with friends and other people in their network, post links, comments, photos and videos and conduct public conversations by writing on members walls. It also allows members to post private messages not visible to the public. Flickr. An online photo management and sharing application that enables members to make the photo and video content they upload available on the web for public or private viewing and commenting. Flickr is for personal, non-commercial use only. Google+. A social networking service that introduces a social layer across Google services such as searches, Gmail or YouTube. Google+ is owned and operated by Google Inc. Instagram. A service allowing users to take photos and videos with their smartphones, apply various filter effects and share them with other users who can like and comment on the photos. Users can also share to other social media services like Facebook, Twitter, Tumblr, Flickr and FourSquare. LinkedIn. A professional networking site where members can maintain connections with other members, establish connections with contacts of members in their network, give recommendations for members and be introduced to other members for help in job searches and other careerrelated goals. MySpace. A social networking site where members can personalize their profile pages, to which they can post text, pictures, video and audio. Members can share all of the content they post with member friends connected to their profile, as well as with the public, or can make their pages private so that they are not accessible to unconfirmed friends. Pinterest. A content sharing site that allows members to pin images, videos and other objects to their pinboard. SnapChat. A photo-messaging application that allows users to send photos or videos to a controlled list of recipients, which then, per previous SnapChat advertising, would expire or be deleted from SnapChat s servers after a prescribed time limit. SnapChat recently settled with the Federal Trade Commission, however, due to preservation and data collection issues, suggesting that posts, photos and videos may not disappear from the site as speedily as, or in the manner, previously marketed. Tumblr. A blogging site where members can post and share text, photos, links, music and video from their browsers, phones, desktop computers and accounts. Twitter. A microblogging site where users post status updates in 140 characters or less through instant message, mobile text or the web. Yammer. A microblogging site similar to Twitter aimed at streamlining internal workplace communications. Although it is free for employees to use, companies who want to gain control of and manage their corporate Yammer networks must pay a fee. YouTube. An online video community that allows users to publicly post, share and view original videos, with a forum for user comments and a platform for creating individual channels. YouTube provides for video embedding that allows users to link videos posted on YouTube to their profiles on Facebook, MySpace, blogs or any other sites. Search Social Media: A Quick Guide for information on additional social media sites, services and applications. Practical Law The Journal Litigation June/July

7 SOCIAL MEDIA USAGE TOOLKIT The Social Media Usage Toolkit available on practicallaw.com offers a collection of resources designed to assist counsel with identifying the legal risks and potential rewards presented by company, employee and thirdparty use of social media. It features a range of continuously maintained resources, including: l Social Media: A Quick Guide l Social Media Compliance with Securities and Disclosure Laws l Protection of Employers Trade Secrets and Confidential Information l Employees and Social Media: Company Best Practices Checklist l Employee Confidentiality and Proprietary Rights Agreement l Employer Access to Social Media Accounts State Laws: Overview at *2 (E.D. Mo. Aug. 12, 2013) (Federal Rule of Civil Procedure (FRCP) 4(e) does not permit substitute service by on domestic defendants where Missouri state law prohibited it)). Some plaintiffs, when unable to perfect service through traditional means, have sought court approval to serve process using social media platforms such as Facebook and LinkedIn. Under this type of proposal, a plaintiff would send a message via the social media platform, attaching the summons and complaint, which the account holder could access upon logging in to the site (see, for example, FTC v. PCCARE247 Inc., No , 2013 WL , at *5 (S.D.N.Y. Mar. 7, 2013)). Courts routinely deny these requests to serve process through social media sites for a number of reasons, including: Uncertainty surrounding the authenticity of social media accounts, given the potential for duplicate and false accounts (see, for example, Fortunato v. Chase Bank USA, N.A., No , 2012 WL , at *2-3 (S.D.N.Y. June 7, 2012); see also Facebook, Inc., Annual Report (Form 10-K), at 4 (Jan. 21, 2014) (duplicate accounts may represent as much as 7.9% of its monthly active users and false accounts may represent as much as 2.1% of its monthly active users)). A lack of confidence that a message posted to a social media account is highly likely to reach defendants or satisfy due process requirements, particularly given users ability to alter or dismantle their alert settings and notification methods (see, for example, FTC v. Pecon Software Ltd., No , 2013 WL , at *8 (S.D.N.Y. Aug. 7, 2013)). However, one court recently allowed international service of process via social media. In WhosHere, Inc. v. Orun, the plaintiff sought to serve process on the defendant (allegedly located in Turkey) through , Facebook and LinkedIn. The court granted the motion, holding that these methods were highly likely to provide the defendant with notice of the litigation because: An individual identifying himself as the defendant had responded to s from an account associated with the social media platforms. The defendant appeared to have recently accessed and updated both his Facebook and LinkedIn accounts. (No , 2014 WL , at *1, *4 & n.8 (E.D. Va. Feb. 20, 2014).) Search E.D. Va. Upholds International Service Through and Social Networking Sites for more on the WhosHere decision. Search Reining in Facebook and Service for more on the Joe Hand Promotions and Pecon Software decisions. Similarly, another court allowed the service of motions and other post-summons documents on the defendants (allegedly located in India) through Facebook, where Facebook served as a secondary or backstop means of service, in addition to (see PCCARE247 Inc., 2013 WL , at *5 (noting that a substantial question would arise whether that service comports with due process if Facebook were the sole, rather than a supplemental, means of service)). Search SDNY: and Facebook Service on Indian Defendants Approved for more on the PCCARE247 decision. In light of these cases, litigators seeking to effect service via a social media platform should be prepared to: Prove the authenticity of related or associated accounts. Demonstrate that the proposed service: zis not prohibited by applicable statutes or rules; zstrictly complies with due process standards; and zis highly likely to reach the defendant. Serve through in addition to social media. SOCIAL MEDIA IN DISCOVERY Once litigation is commenced, counsel should ensure that discovery efforts cover social media content. Common issues that lawyers must address include: Determining whether the user (typically the adversary or a witness) or the social media provider (likely a third party) is the right source of the desired ESI. Drafting appropriate document requests and interrogatories to reach relevant social media content through party discovery. Demonstrating the relevance of discovery requests for social media content. 40 June/July 2014 practicallaw.com

8 Responding to discovery requests for social media content. Assessing how to authenticate social media content for use in summary judgment motions or at trial. SUBPOENAS TO NON-PARTY SOCIAL MEDIA PROVIDERS Securing production of social media content directly from a provider can be difficult. Some social media providers indicate on their websites or in other official documents that they may produce only limited user or account data or public content, but not private content, pursuant to a valid federal or state subpoena (see, for example, Facebook, Law Enforcement & Third-party Matters, available at facebook.com; but see LinkedIn, Your Privacy Matters, available at linkedin.com ( we may need to disclose personal information, profile information, or information about your activities as a Member or Visitor when required by law, subpoena, or other legal process )). These restrictions largely are driven by providers concerns of running afoul of the Stored Communications Act (SCA). This federal statute prevents providers of electronic communication services from divulging private communications and creates a set of statutory Fourth Amendment-like privacy protections (18 U.S.C (1986); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, (C.D. Cal. 2010)). The SCA has been interpreted to cover certain private social media content, such as private messages and non-public posts or comments (see Crispin, 717 F. Supp. 2d at ; see also Ehling v. Monmouth- Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, (D.N.J. 2013) (holding that the SCA protected non-public wall posts on Facebook)). In one case, for example, Facebook objected to a third-party subpoena that sought production of the plaintiff s social media content due to concerns regarding the SCA. Facebook suggested the plaintiff download the entire contents of his account using the site s Download Your Information tool as an alternative method for producing the information. (Gatto, 2013 WL , at *2; see also In re White Tail Oilfield Servs., L.L.C., No , 2012 WL , at *2-3 (E.D. La. 2012).) Search Subpoenas: Using Subpoenas to Obtain Evidence for information on the key issues that parties should consider when using subpoenas to obtain evidence under FRCP 45. DOCUMENT REQUESTS FOR SOCIAL MEDIA CONTENT Discovery of social media content may be more successful through party discovery. As a best practice, counsel should craft document requests to reach social media content and related metadata by: Specifying that the definitions of document and ESI include social media content. For example: z The term document includes all information published at any time on any site or mobile application, including but not limited to all social networking or social media sites such as Facebook, LinkedIn, Twitter, Instagram, YouTube or other social media providers. z The term ESI includes all content from social media providers and profiles and all related metadata. Including a separate document request that specifically seeks social media content. For example, All social media postings, comments, messages or other content relating to the allegations in the Complaint, including but not limited to content from Facebook, LinkedIn, Twitter, Instagram, YouTube or other social media providers. Specifying in the instructions that documents and ESI must be produced with all available metadata. For example, Electronically stored information ( ESI ), including but not limited to social media content, must be produced and continue to be preserved in its original native format with all relevant metadata, including but not limited to any author, creation date and time, modified date and time, native file path, native file name and file type. Dictating the desired method of production for social media content, whether in native format, paper printouts, or PDF or TIFF formats. Some courts have required parties to provide log-in and password access to an agent of the court for an in camera, pre-production relevance review of social media content (see, for example, Original Honeybaked Ham Co., 2012 WL , at *3; Offenback v. L.M. Bowman, Inc., No , 2011 WL , at *1 (M.D. Pa. June 22, 2011)). Others have relied on user authorizations requesting that the social media provider produce the information, though Facebook has, at times, been unwilling to release social media content even where the user has authorized the retrieval (see, for example, In re White Tail, 2012 WL , at *2-3; Gatto, 2013 WL , at *2). Search E-Discovery Toolkit for a collection of resources to assist counsel with managing electronic discovery in current or future litigation. INTERROGATORIES CONCERNING SOCIAL MEDIA Some US district courts have local rules restricting the scope of interrogatory requests in such a way that a party may be limited from requesting specific social media platform and account information early on in discovery. These rules may also require a party to use document requests or depositions to uncover social media platform and account information, or obtain a court order before serving interrogatories seeking this type of information. (See, for example, S.D.N.Y. L. Civ. R ) Where those limitations are not present, however, interrogatories may be used to identify: Social media platforms or accounts established, used or maintained by the responding party. accounts or addresses and networks that are related or associated with the responding party s social media accounts. All names, usernames or pseudonyms, commonly referred to as handles, associated with the responding party s social media accounts (because social media sites typically do not require an account holder to use his legal name). The sworn responses to these interrogatories may be particularly important if the opposing party does not produce social media content or ESI and a motion to compel is required to reach that information. Practical Law The Journal Litigation June/July

9 Search Interrogatories in Federal Court Toolkit for a collection of resources to assist counsel with drafting, serving and responding to interrogatories. RELEVANCE CONSIDERATIONS Once formal discovery begins, social media content is fair game and relevance is a primary consideration for counsel. Courts are sensitive to fishing expeditions, particularly with regard to social media content, which can be voluminous, burdensome, and costly to gather, review and produce. Discovery demands, therefore, should be carefully tailored to be defensible against these objections (see, for example, Giacchetto v. Patchogue- Medford Union Free Sch. Dist., 293 F.R.D. 112, 116 (E.D.N.Y. 2013) ( unfettered access to Plaintiff s social networking history will not be permitted ); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (the defendant did not have a generalized right to rummage at will through information that Plaintiff has limited from public view )). Many courts will carefully analyze the allegations and requested social media content to tailor the production to relevant content only, particularly in response to motions to compel discovery. Courts have narrowed the scope of the proposed discovery by, for example: Requiring the party seeking social media content to make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence, which may be supported by the user s publicly available social media content (see, for example, Tompkins, 278 F.R.D. at ; Keller v. Nat l Farmers Union Prop. & Cas., Co., No , 2013 WL 27731, at *4-5 (D. Mont. Jan. 2, 2013) (denying a motion to compel absent a threshold showing of relevance, but granting a request for a list of all social networking sites to which the plaintiffs belonged); Potts v. Dollar Tree Stores, Inc., No , 2013 WL , at *3 (M.D. Tenn. Mar. 20, 2013); Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (4th Dep t 2012)). Providing detailed guidance on what social media content is relevant to the case and must be produced, including: zinstructions about the relevance of a party s verbal communications, third-party communications, and photographs and videos to be produced (see, for example, EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010)); and zprotocols to resolve any disputes on relevance or production (see, for example, Thompson v. Autoliv ASP, Inc., No , 2012 WL , at *4-5 (D. Nev. June 20, 2012)). Ordering in camera review by the court, sometimes in connection with the appointment of a forensic expert special master, to identify relevant social media content from the plaintiffs accounts (see, for example, Original Honeybaked Ham Co., 2012 WL , at *2-3; Offenback, 2011 WL , at *1-2). Ordering a party s counsel, and not the party, to review the social media content and determine the relevance of the postings (see, for example, Giacchetto, 293 F.R.D. at 116; Simply Storage, 270 F.R.D. at 432). Instructing the requesting party s counsel to review all social media content and inform opposing counsel of relevant information that was not produced, where the existing discovery record suggested that the producing party may have withheld information relevant to the litigation (see, for example, Thompson, 2012 WL , at *5). RESPONDING TO REQUESTS FOR SOCIAL MEDIA In addition to common objections like relevance or undue burden, parties facing discovery requests for social media content often have invoked privacy as a reason to resist disclosure. However, courts generally are dismissive of privacy claims over the public content of social media accounts. The same is usually true for non-public social media content, even where a user has set his privacy settings to shield certain information (see above Privacy Implications). Because non-public content is available to select third parties, who may do with it what they wish, courts often reject privacy claims over this information. For example, in United States v. Meregildo, the prosecutors acquired access to the defendant s Facebook profile through a cooperator who was also the defendant s Facebook friend. The court denied the defendant s motion to suppress the non-public Facebook content on Fourth Amendment privacy grounds, reasoning that where Facebook privacy settings allow viewership of postings by friends, the Government may access them through a cooperating witness who is a friend without violating the Fourth Amendment. (Meregildo, 883 F. Supp. 2d 523, (S.D.N.Y. 2012).) The court further noted that the defendant s privacy expectations ended when he disseminated posts to his friends because those friends were free to use the information however they wanted (Meregildo, 883 F. Supp. 2d at 526). Similarly, in Romano v. Steelcase Inc., a New York court rejected privacy arguments to block discovery of non-public Facebook and MySpace content, writing that as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy (907 N.Y.S.2d 650, 656 (Sup. Ct. Suffolk Cnty. 2010)). In support of its ruling, the court noted that the plaintiff consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings when she created the two social media accounts. The court ordered the plaintiff to provide properly executed authorizations addressed to Facebook and MySpace, permitting access to their content, including any previously deleted or archived ESI. (Romano, 907 N.Y.S.2d at 657.) Counsel may attempt to shield non-public social media content through protective orders (see Simply Storage, 270 F.R.D. at 437; Ledbetter v. Wal-Mart Stores, Inc., No , 2009 WL , at *2 (D. Colo. Apr. 21, 2009)). Search Document Discovery Toolkit and Subpoenas: Responding to a Subpoena for resources to help counsel navigate document discovery, including more on responding to document requests and subpoenas. 42 June/July 2014 practicallaw.com

10 Proper collection and production of either the devices utilized during the creation or use of the social media content, or the social media metadata, which can be done with the assistance of a vendor or collection software, can help minimize authentication challenges. AUTHENTICATING SOCIAL MEDIA Authenticating social media content for use in summary judgment motions or at trial can be challenging, particularly for static screenshots that do not contain metadata. Courts examining the proper methods to authenticate social media evidence have reached different conclusions on the standard a party must satisfy. For example, some state courts have found that a party may use any form of evidence to authenticate social media content if the party demonstrates to the trial judge that a jury could reasonably find that the proffered evidence is authentic (see Tienda v. State, 358 S.W.3d 633, 638, 642 (Tex. Crim. App. 2012); see also Parker v. State, 85 A.3d 682, 687 (Del. 2014)). However, at least one state court has recommended a higher standard, suggesting that a party may authenticate social media content only by: Eliciting deposition testimony from the user or author attesting to the authenticity of the content. Inspecting the computers or devices on which the content was created, along with related internet histories. Procuring account information from the social media providers. (Griffin v. State, 19 A.3d 415, (Md. 2011).) Federal courts have also followed varying approaches to authentication challenges. For example, a circuit court of appeals held that photographs on a defendant s Facebook page were not properly authenticated because a photograph s appearance on a personal webpage does not by itself establish that the owner of the page possessed or controlled the items pictured (United States v. Winters, 530 F. App x 390, (5th Cir. 2013)). On the other hand, a US district court found that statements made by a plaintiff on her Facebook page were authenticated by her deposition testimony and admissible as a party admission under Federal Rules of Evidence (FRE) 901(a) and (b)(1) (Targonski v. City of Oak Ridge, No , 2012 WL , at *10 (E.D. Tenn. July 18, 2012)). Further, the federal courts have relied on different rules to authenticate and admit evidence taken from social media. In one example, a US district court admitted Facebook posts under the residual hearsay exception in FRE 807 based on credible evidence that the posts were authentic (Ministers & Missionaries Benefit Bd. v. Estate of Clark Flesher, No , 2014 WL , at *6 (S.D.N.Y. Mar. 18, 2014)). In another case, a circuit court held that screenshots of Facebook pages and YouTube videos retrieved from a Google server were self-authenticating business records under FRE 902(11) where they were accompanied by certifications from Facebook and YouTube records custodians (United States v. Hassan, 742 F.3d 104, (4th Cir. 2014)). Because courts have not yet reached a consensus on the authentication of social media content, counsel should carefully consider authentication issues during discovery. Proper collection and production of either the devices utilized during the creation or use of the social media content, or the social media metadata, which can be done with the assistance of a vendor or collection software, can help minimize authentication challenges. SOCIAL MEDIA AT TRIAL Social media can play a large role at trial. As with the informal investigation of parties, witnesses and claims, counsel should explore the use of social media when selecting a jury panel. Counsel should also pay attention to the jurors use of social media during the trial and deliberations. JURY SELECTION Counsel can learn important information about prospective jurors, including any potential biases, by examining their: Educational and professional backgrounds on sites like LinkedIn. Likes and dislikes on sites like Facebook. General social media activity, which may indicate whether prospective jurors are likely to seek information about the case outside of the trial record. However, the parameters for social media investigation are more narrowly applied with respect to jurors and potential jurors. The American Bar Association (ABA) recently issued Formal Opinion 466, governing how lawyers may review jurors social media use. At the outset, it states: Practical Law The Journal Litigation June/July

11 Unless limited by law or court order, a lawyer may review a juror s or potential juror s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror. This restricts lawyers to searching only the public content of prospective jurors social media accounts. Connecting with or following a juror or potential juror should not occur under any circumstances. (See ABA Standing Comm. on Ethics & Prof l Responsibility, Formal Op. 466 (2014).) Given this guidance, lawyers should be cautious with social media platforms like LinkedIn that may alert a user that his profile and public content have been viewed. This may be interpreted as inappropriate, unethical and impermissible juror contact. (See NYCBA Comm. on Prof l Ethics, Formal Op (2012); see also Model Rules of Prof l Conduct R. 3.5.) Search Mock Jury Exercises and Gaining an Edge at Trial for more on selecting a jury. MONITORING JURORS USE OF SOCIAL MEDIA Jurors misuse of social media during trial has the potential to undo the extensive trial preparation work performed by both sides. For example, one juror s inappropriate tweets resulted in a conviction being overturned (see Dimas-Martinez v. State, 385 S.W.3d 238, (Ark. 2011)). Given the severe consequences, counsel should monitor jurors use of social media by regularly (and ethically) checking the jurors social media accounts throughout the trial and deliberations. While a lawyer who becomes aware of a juror s improper use of social media may be tempted to stay quiet if the juror favors the lawyer s client, some bar associations, including the ABA, require lawyers who observe a juror s misconduct in public social media posts to report it to the court (see ABA Standing Comm. on Ethics & Prof l Responsibility, Formal Op. 466). If social media use and abuse by jurors is a concern or the litigation is particularly high-profile, counsel may consider asking the court to: Instruct the jurors, at multiple points during trial, to avoid social media use, and explain the consequences of violating the instruction, such as being held in contempt. Require the jurors to take an oath to refrain from social media use during the pendency of the trial. (See Greg Moran, Revised Jury Instructions: Do Not Use the Internet, Union-Tribune San Diego, Sept. 13, 2009, available at web.utsandiego.com; Colin Moynihan, Judge Considers Pledge for Jurors on Internet Use, New York Times, Sept. 18, 2011, available at nytimes.com; Strange v. Entercom Sacramento, LLC, No. 07AS00377 (Cal. Super. Ct. Sacramento Cnty.); United States v. Bout, No. 08-CR-365 (S.D.N.Y.).) The author, Norman C. Simon, represented the plaintiff in the McMillen case discussed in this article. 44 June/July 2014 practicallaw.com Use of Practical Law websites and services is subject to the Terms of Use (http://us.practicallaw.com/ ) and Privacy Policy (http://us.practicallaw.com/ ).

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