The rise of social media presents new challenges and opportunities for litigators in discovery. While courts struggle with the application of existing rules and statutes to the new media, attorneys’ concerns about framing the request and preventing spoliation are timeless.
What better way to disprove a plaintiff’s claim for emotional distress than to dig up exuberant photographs and postings on Facebook?
At least two recent cases have grappled with discovery requests for social media postings and illustrate the scarcity of published precedent in this evolving area. In Robinson v. Jones Lang LaSalle Americas, Inc.,1 the plaintiff claimed that workplace discrimination left her with emotional distress. The defendant sought any communication, including Facebook postings, referencing the plaintiff’s “work-related emotions.” The U.S. District Court of Oregon granted the request, stating that there was “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” As to how to determine what to produce, the court left that to the parties to sort out in “good faith.”
A similar case went a step further to decide the scope of discoverable social media. In Mailhoit v. Home Depot U.S.A. Inc.,2 the plaintiff claimed that workplace discrimination at Home Depot caused her to become withdrawn and isolated from friends. The defendant requested social media postings that revealed “any emotion,” third-party communications, and any pictures posted or tagged during the relevant time period. The court rejected those requests as overly broad.
[S]everal courts have found that even though certain [social networking site] content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information that [the responding party] has limited from public view” but instead require “a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”3
This straightforward concept is relatively new, and has not always been followed by courts.4 Despite its ubiquity, Facebook’s reach in the world sputters out at the courtroom door. With a lack of published opinions, some judges have struggled to determine when and how to compel social media discovery.5 Nevertheless, the growing trend is to require parties to provide a threshold showing of relevant material, require parties to independently sort out production, and avoid a direct subpoena to Facebook.
The payoff for a social media discovery request can be great: social networking sites remain one of the last sources of discovery that can turn up something truly unexpected and extraordinary. Divorce lawyers for years have taken advantage of opposing partys’ predilection for posting the kind of evidence that would make a family law judge’s jaw drop.6 More information can be found beyond photos; electronically stored information (“ESI”) provides metadata about the time and IP address from which information was uploaded to the website.7
Discovering Social Media Accounts
Social media present a new format for communication, but should not dramatically change the rules of discovery.8 Social media communication is rapidly gaining pace with its inveterate counterparts in paper and email.9 Even many judges are no longer flummoxed by the idea of social media—a recent survey showed that nearly half of all judges use Facebook in their personal and professional lives.10 Still, case law around social media discovery is largely unpublished and few cases have reached the appellate level.11 The best approach to social media is similar to that employed for any potential field of discoverable information: ask, hope you receive, and be skeptical.
Privacy No Longer a Concern. Courts have established that Facebook and social media information, even if guarded under privacy settings, is discoverable if it is shown to be material and relevant to the claims or defenses.12 In Loporcaro v. City of New York, the plaintiff firefighter sued the city of New York and a private contractor, claiming an injured knee left him permanently disabled and confined to bed for several months. The defendant requested the plaintiff’s Facebook postings, claiming that public portions of his profile revealed he maintained an “active lifestyle;” therefore, private or deleted portions could lead to admissible evidence. The court granted the request, reasoning:
When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to the members of the public. Clearly, our present discovery statutes do not allow that the content of such accounts should be treated differently from the rules applied to any other discovery material … .13
Courts are treating social media content similarly to other forms of discovery. Not only do judges reject the argument that social media content is privileged, but the stigma of unreliability associated with internet content is fading away, too.14 Attorneys should expect that social media are fair game in the discovery process.
Self-help and Interrogatories. The first step in social media discovery is to discern what kinds of accounts the opposing party might keep. Some informal discovery is acceptable, but there are certainly ethical considerations. It is acceptable for an attorney to view any publicly accessible websites,15 but trickier issues develop when viewing a profile requires approval via “friend request.”
Generally, an attorney stays within the boundaries of ethical conduct if she sends a friend request to an unrepresented person and does not take steps to conceal her identity.16 However, the legal community disagrees about whether an attorney must disclose the reason for making the friend request.17 Most authorities consider it unethical to employ a third party to make a friend request without disclosing the contact is at the behest of an attorney seeking information.18 When engaging in self-help, an attorney should always be aware of the Rules of Professional Conduct. Attorneys are barred from making a false statement to a third party or engaging in dishonest conduct, and contact with a represented party, even through a Facebook request, is a violation of ethical rules.19
Individual Account Holders
Once the attorney establishes that the opposing party uses social media, they must determine the best way to receive information through discovery or a third-party subpoena. Parties must also be alert to spoliation.
Choosing the Production Method. Attorneys have negotiated a variety of ways to produce information posted on social media platforms: producing paper or electronic copies, providing login information, or asking a judge to review material in camera. One method is to produce print-outs of screen shots of the website.20 Alternatively, a court might order the producing party to hand over usernames and passwords.21 In McMillen v. Hummingbird Speedway, Inc.,22 the defendant race track company demanded that the plaintiff, an injured stock car driver, produce his Facebook login information to allow for inspection of his profile. The judge rejected the plaintiff’s argument that social media postings were privileged and confidential, ordering the plaintiff to produce the password and allow access for 15 days.23 The plaintiff did not object on the basis that the request was overly broad, an argument other courts have embraced to reject access to an entire account.24
A Tennessee magistrate judge tried a creative approach and created his own Facebook account in order to send a “friend request” to witnesses who were not within the reach of the court’s subpoena power.25 The magistrate then offered to gather what he determined to be discoverable and distribute the information to the requesting party. In a similar vein, a Pennsylvania judge ordered a plaintiff, a vehicle accident victim, to show the judge his Facebook profile in camera.26 The judge ordered the plaintiff to produce some material, noting that most was irrelevant, chiefly the references to the plaintiff’s “love of bluegrass music” and “a passion for the Philadelphia Phillies.”
Deleted and Deactivated Material. An attorney’s tactics should reflect her level of concern over how scrupulously a producing party will respond to a discovery request. Social media requests typically raise suspicion that a party has not or will not produce everything.27
Deleted accounts and posts remain subject to discovery.28 If an account vanishes from Facebook, it is not necessarily lost forever. Facebook states that a user may suspend her account through “deactivation.”29 With deactivation, the profile disappears and other users cannot find it in the directory. However, if a user wishes to resume a deactivated account, all the information saved by Facebook will reappear upon reactivation. In contrast, a deleted account is removed permanently, the user cannot regain access, and most information is removed from the website. Facebook states “[c]opies of some material (photos, notes, etc.) may remain in our servers for technical reasons.”
If a party deletes, manipulates, or refuses to hand over relevant material from a social media account, the court may impose sanctions. In Lester v. Allied Concrete Co., a Charlottesville, Virginia judge gave an adverse inference jury instruction and ordered the plaintiff and his attorney to pay reasonable attorneys’ fees for spoliation sanctions.30 Instead of responding to a discovery request, the attorney “created a scheme to take down or deactivate Lester’s Facebook page and to respond by stating that Lester had no Facebook page as of the date the response was signed.”
Preservation, Spoliation, and Sanctions. If an attorney suspects the other side of spoliation, the attorney should file a motion to compel and ask for the username and password, or ask the judge to review an account in camera. In Lester, the plaintiff requested his own IP logs from Facebook, which he then produced to the defendant to comply with a discovery request. The defendant hired a computer expert to examine the logs, and the expert concluded that the plaintiff had deleted 16 photographs. IP logs may contain information about the date, time, and user that made a change to the account.31
Another way to learn about spoliation or gather deleted information is to try to capture remnants of deleted ESI on the device that the individual used to access Facebook. Users can access social media on any number of devices: computer, iPad, iPod, smart phone, tablet, or a hand-held game system like a Nintendo DS.
To prevent spoliation, both sides should communicate early to ensure preservation of evidence. Facebook allows a user to download personal account data to produce its contents for litigation purposes.32 An attorney should instruct clients or opposing counsel to do this as soon as a litigation hold is appropriate, and continue to do so throughout the litigation period. This is one step in the discovery process, and it does not capture metadata that could be relevant and discoverable.33 However, this practice could protect a producing party against allegations of bad faith or spoliation.34
Third-Party Providers & Subpoenas
Attorneys may be inclined to bypass the individual and directly subpoena the source, the social media provider. However, these companies fiercely resist answering third-party subpoenas and claim shelter under the Stored Communications Act (“SCA”), which shields from subpoena power providers that store electronic communications.35
Serving a Subpoena on Facebook. Facebook will not provide the contents of an account in response to a civil subpoena, but will provide basic subscriber information. Facebook responds only to a valid California state or federal subpoena. To serve a subpoena:
1) Provide the Facebook user ID (“UID”) or the vanity URL, if available. The UID may be found in the URL of the user’s profile. Facebook provides an example: “in the URL http://www.facebook.com/profile.php?id=12345678910, 12345678910 is the UID.”
2) The subpoena may be served on: Facebook, Inc., c/o Corporation Service Company, 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833. (Corporation Service Company is the registered agent filed with the California Secretary of State Business Entities Registry).
Provider Objections. The Stored Communications Act (“SCA”) was enacted in 1986,prior to the rise of the internet, when Facebook founder Mark Zuckerberg was two years old. Under the law, electronic communication services (“ECS”) and remote computing services (“RCS”) that provide services to the public cannot be compelled to produce information created by or about their customers and subscribers. Courts have struggled to define what falls under the purview of the SCA, especially as the statute significantly predates social media.36 The SCA defines an ECS as “any service which provides to users thereof the ability to send or receive wire or electronic communications”37 and an RCS as a service that provides “computer storage or processing services by means of an electronic communications system.”38
Social media companies argue that they, like email providers, are protected from disclosing information about subscribers under the SCA.39 Courts have rarely delved into detailed analysis about the issue. One notable exception is Crispin v. Christian Audigier, Inc.,40 where the U.S. District Court, Central District of California, held that wall postings on Facebook and MySpace are protected by the SCA. The court reasoned that the social media sites served as a “backup service” for the postings, which qualifies them under the statute. Similarly, Twitter has been found to fall under protection of the SCA.41
Since Crispin, few courts have ruled on social media’s standing under the SCA. In a case involving juror misconduct, a Sacramento County judge did not analyze the applicability of the SCA, but wrote that, “an entity such as Facebook may not disclose content of electronic storage except as provided under the [SCA].”42 The juror, who was suspected of posting from the jury box that the trial was “boring,” fought an attempt by the court to review his Facebook profile. The California Court of Appeals rejected the lower court’s reading that the SCA applied to Facebook, stating, “Assuming Crispin was correctly decided, that case did not establish as a matter of law that Facebook is either an ECS or an RCS or that the postings to that service are protected by the SCA.”43 The appellate court ultimately avoided the issue, stating that the appellant had failed to provide facts to support its position that the SCA was applicable in the instant case.
It is important to note that the SCA applies only to subpoenas for information regarding a third party. The SCA does not apply to a request for one’s own information, and a court may order a producing party to obtain account information from Facebook in order to comply with a discovery request. In many cases, Facebook will require a subpoena.44 In Bass ex rel. Bass v. Miss Porter’s School,45 the plaintiff claimed she was unable to access her Facebook account to comply with discovery. The court ordered her to obtain the information from Facebook and produce it to the opposing counsel, which she did by issuing a subpoena.
It remains unclear whether courts will move in the direction of Crispin. The uncertainty means that litigants should never rely exclusively on a third-party subpoena to a social media provider. The best means to recover ESI from Facebook is to serve a discovery request on the individual and the provider, with the possibility that the producing party might have to issue a subpoena on the social media provider to gain access to specific content.
Discovering social media presents new challenges, but concerns about casting the right net and preventing spoliation are timeless. In the coming years, courts must confront the largest unresolved issue: whether the SCA shields social media providers from civil third-party subpoenas. In the meantime, attorneys should engage in ethical self-help and use interrogatories to discover the existence of the social media accounts. The method of production varies from printing out screen shots to producing the login information for the requesting party’s inspection. Lawyers should communicate early to avoid spoliation and ensure preservation of discoverable material.
Heidi M. Silton is a partner with the Minneapolis law firm Lockridge Grindal Nauen PLLP and focuses her practice in the areas of antitrust, class action, and business litigation. Ms. Silton represents mainly small and mid-sized businesses in complex litigation in Minnesota and throughout the United States.
Courtney Blanchard, a summer associate at Lockridge Grindal Nauen PLLP, is a second year student at William Mitchell College of Law. Prior to enrolling in law school, she worked as a journalist covering politics, crime and courts for several publications in Minnesota and Iowa, including the Telegraph Herald, Session Weekly and the Star Tribune.
1 Robinson v. Jones Lang LaSalle Americas, Inc., No.
3:12-CV-00127, 2012 WL 3763545 (D. Or. 08/29/2012).
2 Mailhoit v. Home Depot U.S.A., Inc., No. 2:11-CV-03896, 2012 WL 3939063 (C.D. Cal. 09/07/2012).
3 Id. at *2 (quoting Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).
4 Trail v. Lesko, No. GD-10-017249 (Pa. C.P. Allegheny 07/03/2012) (surveying Pennsylvania and national court rulings on social media discovery).
6 Stephanie Chen, “Divorce Attorneys Catching Cheaters on Facebook, CNN, 06/01/2010, available at: http://tinyurl.com/33meg4q.
7 Mark A. Berman, “Metadata Meets Facebook E-Discovery,” N.Y. Law J. (05/02/2012) available at: http://tinyurl.com/cyledze
8 Equal Emp’t Opportunity Comm’n v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010).
9 Facebook was expected to reach 1 billion users
sometime in August 2012, but the recent numbers show it has 955 million active users.
10 Conference of Court Public Information Officers, 2012 CCPIO New Media Survey, at *5 (07/31/2012), available at: http://tinyurl.com/d7xjtj6.
11 John Alexander, “OMG, TMI: Civil Discovery and Social Media,” 52 N.H. Bar J. 34 (Winter 2012).
12 Loporcaro v. City of New York, No. 100406/10, 2012 WL 1231021, *8 (N.Y. Sup. Ct. 04/09/2012).
13 Id. at * 8.
14 John G. Browning, “Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites,” 14 SMU Sci. & Tech. L. Rev. 465, 470
15 N.Y. State Bar Assoc. Committee on Prof’l Ethics, Op. 843 (2010).
16 See Michael Downey, “Scruples – Pretexting and Discovery of Social Media,” 38 Litigation 10 (Winter 2012); County Bar Update, Los Angeles County Bar Association (08/07/2012) available at: http://tinyurl.com/c9aupdq; New York City Bar Association Formal Opinion 2010-02, “Obtaining Evidence from Social Networking Websites” (2010) available at: http://tinyurl.com/8fzyean.
17 See New York City Bar, supra note 15 (stating that it is ethical to make the request without disclosing the reason for doing so). But see San Diego County Bar Association, “SDCBA Legal Ethics Opinion 2011-2” (adopted 05/24/2011) available at: http://tinyurl.com/3r7srvu .
18 Downey, supra note 15.
19 Model Rules of Prof’l Conduct R. 4.1, 8.4(c) (2010); 4.2 (2010
20 Bass ex rel. Bass v. Miss Porter’s Sch., No. 3:08 CV 1807, 2009 WL 3724968 (D. Conn. 10/27/2009).
21 Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. C.P. Northumberland Cnty. 05/19/2011).
22 McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (Pa. C.P. Jefferson, 09/09/2010).
23 Id. at *8. See also Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Franklin C.P. 11/08/2011).
24 See Mailhoit, supra note 2, at *3–4; Equal Emp’t Opportunity, supra note 8, at 435.
25 Barnes v. CUS Nashville, LLC, No. 3:09–CV–00764, 2010 WL 2265668, *1 (D. Tenn. 06/03/2010).
26 Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. 06/22/2011).
27 See Lester v. Allied Concrete Co., No. CL08-150, CL09-223 (Va. Cir. Ct. 09/01/2011).
28 See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 651 (Sup. Ct. 2010); see also Streamline Capital, L.L.C. v. Hartford Cas. Ins. Co., No. 02 CIV.8123, 2005 WL 66898 (S.D.N.Y. 01/11/2005).
29 “Deactivating, Deleting, and Memorializing Accounts,” Facebook Help Center (08/08/2012) available at: http://tinyurl.com/7jmdwj2.
30 Lester, supra note 27, at *5–6.
31 Peter Coons, “eDiscovery in Social Media—Controversial Facebook Photo Sparks Debate,” eDiscovery Service Blog (08/08/2012) available at: http://tinyurl.com/cen3zvo. See also Lester, at *4.
32 “Law Enforcement and Third Party Matters,” Facebook Help Center (08/09/2012), http://tinyurl.com/74vg75z
33 Coons, supra note 31.
34 See Katiroll Co., Inc. v. Kati Roll and Platters, Inc., No. 10–3620, 2011 WL 3583408, *4 (D.N.J. 08/03/2011.
35 18 U.S.C. §§2701–2712.
36 Ryan A. Ward, “Discovering Facebook: Social Network Subpoenas and the Stored Communications Act,” 24 Harv. J.L. & Tech. 563, 566 (2011).
37 18 U.S.C. § 2510(15) (2006).
38 18 U.S.C. § 2711(2)(2010).
39 Warshak v. United States, 532 F.3d 521, 523 (6th Cir. 2008).
40 Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).
41 People v. Harris, No. 2011NY080152, 2012 WL 1381238, *5 (N.Y. Crim. Ct. 04/20/2012).
42 People v. Christian, No. 08F09791 (Cal. Super. Ct. Sacramento Cnty. 02/04/2011).
43 Juror Number One v. Superior Court, No. C067309 (Cal. Ct. App. 05/31/2012) (emphasis in the original).
44 Derek S. Witte, “Your Opponent Does Not Need a Friend Request to See Your Page: Social Networking Sites and Electronic Discovery,” 41 McGeorge L. Rev. 891, 900 (2010)
45 Bass, supra note 20, at *1.