A NEW FRONTIER. or the Same Issues in New Packaging?

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1 8 Pro Te: Solutio

2 Social Media and Discovery Considerations: A NEW FRONTIER or the Same Issues in New Packaging? Facebook, smart phones, computer searches, twitter, texting sometimes it feels like social media is inescapable. Has it wormed its way into litigation strategy? Should the lawyer you hired for your big case be as knowledgeable about social media as trial techniques? Should you be concerned about privacy and ethical issues? Is using social media in litigation merely a convenient and more efficient way to do what has always been done: to gather information about the opposing parties, witnesses, and jurors? The answer to those questions is a resounding...maybe. This new form of communication presents challenges on how to discover and use its content in litigation. Additionally, your company s social media content may have to be preserved in order to minimize risk. The case law in this area is surprisingly sparse but growing. We are starting to see how social media is affecting litigation. Use of Social Media in Discovery It appears that judges are taking into consideration the same legal concepts for discovery of social media as for other information. In Equal Employment Opportunity Cmm n v. Simply Storage Mgmt. LLC, 1 the defendant requested photographs, videos, postings, and profiles from the plaintiffs 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 evidence. The court noted that discovery of social media simply requires the application of basic discovery principles in a novel context. 2 The court rejected the plaintiffs 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. 3 The court in this case ultimately determined that the requests were too broad and narrowed them to the issues 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. 4 Recently, judges in personal injury cases in both New York and Pennsylvania compelled discovery of social media evidence Pro Te: Solutio 9

3 that dealt with the claimed incapacity of the plaintiffs. In Romano v. Steelcase, 5 the personal injury plaintiff alleged back and neck problems. The defendants noticed that her public social media pages portrayed a different picture of her medical condition and sought a motion to compel production of her private social media profiles. The court ordered her to execute a consent form authorizing Facebook and MySpace to provide the defendant s access to her private profile. In granting the motion, the court noted Facebook s and MySpace s own policies, which warn users that they should have no expectation of privacy. The court stated that when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared [ considering] the law s general dispreference for the allowance of privileges, access to those sites should be freely granted. 9 Similarly, in Beye v. Horizon Blue Cross/ Blue Shield 10 the court was not persuaded by the plaintiff s allegations that disclosure of the minor s Facebook pages would cause her stress, anxiety, or the potential relapse of her eating disorder. The court found that [t]he privacy concerns are far less when the beneficiary herself chose to disclose the information. 11 Courts are showing some flexibility in deciding what part, if any, of Facebook or other social media postings might have to be disclosed. In Offenback v. LM Bowman, Inc., 12 a personal injury lawsuit, the magistrate himself undertook a review of the Facebook pages in camera. The plaintiff would forward on any relevant information to the parties. Then, he would close his Facebook account. It is unknown whether this novel friending solution was accepted by the parties. Two recent ethics opinions focus on these issues in their discussion of the ethics of searching social media profiles of participants in a trial. The Philadelphia Bar Association Ethics Committee was asked if an attorney could engage a third party to friend an unrepresented adverse witness whose Facebook and MySpace pages were not accessible to the general public. 14 The third party would post truthful personal information, but would not mention his association with the lawyer or that the real purpose of the friend request was to obtain potential impeachment information. The Companies need to be ready not only to proactively use social media in litigation, but also to protect against spoliation claims. To the extent social media data is treated like other forms of electronically stored information, the same standards regarding preservation, collection, review, and production will apply. Companies should consider whether relevant information can 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 in discovery. 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. 6 In McMillen v. Hummingbird Speedway, Inc., 7 a Pennsylvania state court matter, the defendant s interrogatories asked whether McMillen belonged to any social network computer sites and, if so, that he provide the name of the site(s), his user name(s), his login name(s), and his password(s). The plaintiff objected that the information was confidential and privileged. The court granted the defendant s motion to compel, noting that the complete access afforded to the Facebook and MySpace operators defeats McMillen s proposition that his communications are confidential. 8 The court concluded that [w]here there is an indication that a person s social network sites contain information relevant to the prosecution or defense of a lawsuit, alleged that he had suffered back, shoulder, and neck injuries that left him physically limited and suffering from anxiety and depression. The court found that postaccident photographs and postings revealing that the plaintiff rode from Kentucky to Pennsylvania on his Harley and that he had recently ridden a mule needed to be disclosed, but other information did not. A more creative solution was found by the magistrate in Barnes v. CUS Nashville LLC. 13 There, the magistrate found that photographs of the plaintiff dancing on the bar might be relevant to how her injury occurred. He therefore offered to create a Facebook account for himself. If the two photographers whose Facebook accounts contained this information agreed, they could then send him friend requests which he would accept for the sole purpose of reviewing photographs and related comments of the incident in question. He then opinion stated that the attorney s proposed actions violated the Pennsylvania Rules of Professional Conducts which prohibit a lawyer from engaging in deceit or misrepresentation. 15 The opinion also found that such actions violated the duty to supervise the conduct of a non-lawyer employed by the lawyer because that employee would be omitting a material fact in his communication with the witness. 16 The New York State Bar Association, however, found nothing unethical in an attorney viewing the publically available Facebook and MySpace pages of an adverse party to look for possible impeachment materials. 17 The opinion noted that the sites the lawyer wished to view were accessible to all members of the network, and he was not gaining access by deception or misrepresentation. The opinion found that [o]btaining information about a party available in the Facebook or MySpace profile is similar to 10 Pro Te: Solutio

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5 obtaining information that is available in publicly accessible online or print media, or through a subscription research service. 18 Collecting and Preserving Social Media Evidence: Playing Defense The focus of discovery had a significant shift over the last few years with the proliferation of and the birth of e-discovery. Gartner, Inc., a leading technology research firm, has predicted that [b]y 2014, social networking services will replace as the primary vehicle for interpersonal communications for 20 percent of business users. 19 The Federal Rules of Civil Procedure were amended in 2006 to cover electronic discovery. Rule 26 (a)(1)(a)(ii) requires initial disclosure of electronically stored information. Rule 26 (b) (2)(B) addresses limitations on electronically stored data due to burden and costs. Rule 33 (d), which provides the option of producing business records instead of answering an interrogatory, makes it clear that electronically stored information is a business record. Rule 34 specifically addresses the actual production of electronically stored information. Not yet decided by the courts, however, is whether company information, such as a company s Facebook page which is not stored on the company s servers, is subject to these rules because that information might be considered under the company s control. How to Deal with the New Role of Social Media Sites 1. Companies need to be ready not only to proactively use social media in litigation, but also to protect against spoliation claims. To the extent social media data is treated like other forms of electronically stored information, the same standards regarding preservation, collection, review, and production will apply. Companies should consider whether relevant information can 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 in discovery. If this information is relevant to litigation and should be produced, 12 Pro Te: Solutio

6 companies must consider how to preserve it. One of the challenges of social media is that the data is not internally stored but instead housed within the social media sites themselves. For companies, this difference makes the control and preservation of this data significantly more difficult. Vendors such as Smarsh, Inc., offer programs to preserve and capture information on webpages including social media sites. Interestingly, Smarsh recently published the results of a survey of 223 compliance personnel on e-discovery. It found that only one in seven had complete confidence that they could produce within a reasonable time their employees business content from social media sites such as LinkedIn, Facebook, or Twitter if such information was specifically requested in e-discovery. In contrast, 87% of the respondents were mostly or completely confident that they could produce s. 20 This survey indicates that most companies have effectively begun to deal with the e-discovery of s, but social media presents a much greater challenge When a lawsuit is filed, counsel should immediately investigate whether the plaintiff has a Facebook, MySpace, LinkedIn, or other social media profile. If information is available to the public, such information should be downloaded and saved, barring any order by the court prohibiting such action. The few court decisions to date suggest that any public information on those sites is fair game. If the plaintiff has a social media site with privacy settings and no publicly available information, the fact that the plaintiff had such a page at the time he filed the lawsuit will be helpful to know. Then, if at some point during the course of the litigation the social media page disappears, an argument of spoliation might be considered. 3. Ask information in your discovery requests relevant to social media not publicly available. Based on the cases decided so far, a request, tailored to information related to the claim or to the alleged injuries, should be acceptable to the court. 4. Consider how the use of social media might be useful in the defense of litigation against your company while keeping in mind the ethical issues involved. Search for any ethics or court opinions in the relevant jurisdiction as to the use of social media. This area is ripe for further elucidation by the courts. 5. Determine if the judge assigned to your case has rendered any opinions or ruled on any matters involving social media or electronically stored information. Some judges will be more comfortable than others in allowing social media to be used to gather information and evidence at trial. Conclusion It s a new day out there. Before there is litigation, companies should keep that possibility in mind in the creation of and postings to social media sites. Once litigation commences, a company should preserve postings that might arguably be relevant and investigate and seek discovery of social media information from its opponent WL (S.D. Ind. 2010). 2 Id. 3 Id. 4 See also Mancuso v. Florida Metropolitan University, Inc. (2011); TEKsystems, Inc. v. Hammernick (2010); Bass v. Miss Porter s School, 2009 WL (D. Conn. Oct. 27, 2009); and Ledbetter v. Wal-Mart Stores Inc., 2009 WL Romano v. Steelcase Inc., 30 Misc.3d 426 (N.Y. Sup. Ct. 2010). 6 Id. at Ct. of Com.Pleas, Jefferson Cty, Pa, no CD, Id. at 5. 9 Id. at WL (D.N.J. 2007). 11 Id at WL (M.D.Pa 2011) WL (MD Tenn., 2010). 14 Philadelphia Bar Op (March 2009). 15 Pennsylvania Rules of Professional Conduct Rules 8.4(c) and Pennsylvania Rules of Professional Conduct 5.3 (c)(1). 17 New York State Bar Association Ethics Opinion 843 (9/10/10). 18 Sic. 19 Gartner Reveals Five Social Software Predictions for 2010 and Beyond, Garnter Newsroom, February 2, Available at < jsp?id= >. Last accessed August 5, Id. P Electronic Communications Compliance Survey, Smarsh, May Available at < whitepapers>. Last accessed August 5, Written by Melissa Baltz and Martin Willoughby Pro Te: Solutio 13