Motion to Compel - Granted

A Pennsylvania judge orders the disclosure of a plaintiff's log in credentials to her Facebook page.

In the previous post, I discussed whether a motion to compel log in information would be successful.  Well, at least one judge in Pennsylvania thinks that there is absolutely nothing privileged or protected about posting on Facebook.  

For comparison purposes, Pennsylvania seems to follow the universal discovery standard: any topic that is "reasonably calculated to lead to the discovery of admissible evidence" is fair game.

I highly recommend reading the court's entire opinion in the matter of Largent v. Reed, but here are the primary holdings of the court:

1. By putting her physical and mental condition at issue in a personal injury lawsuit, the Plaintiff gives the defendant "a good faith basis for seeking material contained on [the plaintiff's] Facebook account."
2. There is no privilege under Pennsylvania law for Facebook posts, and "[t]here is no reasonable expectation of privacy in material posted on Facebook."
3. The Stored Communications Act does not apply to individuals as they are neither "electronic communications services" or "remote computing services" as defined by the Stored Communications Act.
4. Facebook posts and messages do not qualify as an overly broad or unduly burdensome discovery request.  The court notes that by "filing a lawsuit and seeking monetary damages, [the plaintiff] has placed her health at issue, which vitiates certain privacy interests. Any posts on Facebook that concern Largent's health, mental or physical, are discoverable, and any privilege concerning such information is waiver."

As a final note, it seems the plaintiff's attorney in this matter attempted to cite cases by printing an online article from a newspaper and a post from a plaintiff's personal injury firm.  The court not-so-gently reminded counsel to provide a docket number "so that the Court does not need to conduct a wild goose chase to find the case."

Motion to Compel Access to Social Media

Will a court grant a motion to compel and force a party to disclose his or her password for social media websites or webmail services such as Gmail or Yahoo?

In the world of civil litigation, the magic words during discovery are "reasonably calculated to lead to the discovery of admissible evidence."  Courts tend to broadly construe this standard, so there is little that cannot be explored during a deposition or in a request for production of documents.

For example, in a personal injury case, it is quite common for the defense to obtain complete medical records for 10 years or more leading up to the incident, even if those records have absolutely nothing to do with the injuries claimed; e.g., a doctor's visit for a flu shot when the issue is a low back injury.  

Will a court grant the same liberal interpretation for e-mail and social media log-in information?  In Romano v. Steelcase, Inc., a state court in New York granted a motion to compel complete access to a plaintiff's social networking cites based in part because the plaintiff posted pictures of himself on a publicly accessible Facebook page.  Of course, another New York state court held less than a year later that a demand to access social media is not carte blanche for a "fishing expedition."  Carbollo v. City of New York.

The federal district courts seem to follow the same "fishing expedition" line of thought.  In Potts v. Dollar Tree Stores, Inc. 2013 U.S. Dist. LEXIS 38795, 117 Fair Empl. Prac. Cas. 1352, the court recognized that information posted to Facebook is neither privileged nor protected by common law notions of privacy; however, "the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view . . . ."  

In order to access the private portions of Facebook, the court held that there must be a preliminary showing "that the requested information is [wait for it...] reasonably calculated to lead to the discovery of admissible evidence."  Ultimately, this is the same holding as Romano.  As long as there is something indicating a party has posted discoverable evidence on private portions of social media, the opposing party has at least a good-faith argument for demanding access to it.

The take-away: don't go into the motion to compel hearing empty handed.  Have some evidence (preferably lots of it) that the other side has posted relevant and possibly admissible things on social media.  There are several ways to go about collecting this, but we'll save that for a later post.

No More Secrets

An entertaining and educational video.  Two things that you can take away from this video:

1. A good demonstration of the very personal information that can be found through social media sites
2. Most people do not think about the fact that that their social media posts can (and will) be accessed by strangers 

Via Ace of Spades:

Warning: the bad words are censored, but they're there.

When Doesn't Social Media Discovery Make Sense?

It's hard to imagine a civil litigation case that doesn't involve social media as part of discovery or just general background investigation on the parties involved in the case.

While this article's headline seems to suggest that there is a scenario in which a lawyer may not pursue information available on social media networks, the body of the article proceeds to list several types of cases from business and employment disputes to personal injury that could benefit from social media discovery and investigation:

Generally speaking, discovery of social media may make sense in a variety of business disputes. A social media platform like Facebook may lead to relevant, useful information about the plaintiff in an employment discrimination or harassment lawsuit. In a suit to enforce a former employee’s non-compete agreement, the employee’s social media may have information on when she began working for a competitor and whether she shared confidential information. In a business tort case, a party may discover evidence of wrongful motive or intent relevant to a tortious interference with contract claim on a social media platform. Or, there may be evidence relevant to claims of misappropriation of business opportunities or breach of fiduciary duty. Discovery of social media may also be appropriate in cases involving fraud or misrepresentation. Last, discovery of social media may also make sense in some product liability actions. Plaintiffs often seek damages for emotional distress and social media can be a valuable tool in assessing the validity of the alleged distress.

The remainder of the article briefly touches on methods of obtaining "private" information and a couple courts' response to requests to force people to open up "private" sections.  Apart from listing the numerous types of cases in which social media discovery can and should be used, the article cautions against fighting Facebook and other social media sites about their obligation to comply with subpoenas:

Facebook does not provide user content in response to a civil subpoena on the ground that the Stored Communications Act prohibits it from disclosing the contents of an account to any non-governmental entity.

In other words, it's going to be quite expensive taking on Facebook's policy; especially considering you have standard discovery tools like a request for production and motion to compel to force the other side to produce the information.  Of course, that begs the question - will a court grant such an order?  We'll discuss that in an upcoming post. 

Pitfalls of Screen Grabbing

You found a smoking gun Facebook post, tweet or website that will completely torpedo your opposition's star witness.  Don't let authentication issues keep it out of evidence.

Most lawyers probably use the screen grab method of saving posts from Facebook or other websites.  The lawyer finds the post, hits "print screen" on the keyboard, and then saves the file; or perhaps he or she simply prints a copy of the post and places it in the file.  

This will likely be sufficient for use at a deposition, but what if the witness is uncooperative or opposing counsel decides to fight you on the admissibility of the print-out?  There are any number of ways this could happen.  The witness claims that his or her account was hacked and someone else posted the information.  Opposing counsel not-so-subtly suggests that the post was photoshopped.  When you screen grab a key piece of evidence off a website, you are relying solely on the other side's cooperation in getting it admitted into evidence.

Ideally, you should have a solid backup plan.  For authentication of evidence, this means a witness who can testify about seeing and saving the information, and it won't hurt to have other indicia of reliability that shows the evidence is, in fact, what it appears to be - metadata showing time, place, website address, etc.

As for the witness to testify about viewing and saving the information, if the lawyer is the one doing the work, it becomes problematic since most lawyers would rather avoid making themselves a witness in their own client's trial.  A paralegal or legal assistant could perform the work, but opposing counsel would likely exploit the employment relationship as evidence of bias. 

There is no need to hire a computer expert per se, but you may want to consider hiring an outside company to pull the information and provide a witness if needed.  It doesn't completely solve the bias from a payment standpoint, but it looks significantly better than putting your long time paralegal on the stand to authenticate a particularly incriminating piece of evidence.  The company you hire should also be able to provide metadata to help the authentication issue.

In short, your primary method of introducing evidence shouldn't be the other side's cooperation. Sure, it's great if you have that sort of working relationship, but it is always advisable to have the authentication and admissibility issues sorted out before asking a favor from opposing counsel.

Social Media and Discovery - Initial Concerns

It is amazing the amount and type of personal information people willingly disclose to the public via social media websites like Facebook and Twitter.  Most litigators shouldn't worry about whether the information is out there - it is.  Likewise, it is hard to imagine a scenario in which social media information is not an avenue that the litigator should explore. The first question should be how to efficiently capture as much of the information as possible and then incorporate it into the litigation strategy.

Before getting into capturing the information, one should determine where to find the information; i.e., does the person have a Facebook / Twitter / LinkedIn account?  The two ways to answer this question: assuming the person is a party to the litigation, you can send an interrogatory asking for the information.  However, if you would like the answer faster than 30 days (or 60+ days with an uncooperative opposing counsel), it's probably best to find the answer yourself.

Facebook and LinkedIn provide very powerful search functions.  Twitter is somewhat more difficult.  In any event, once you find the person, what's the best way to capture the information? Most people probably follow the "print screen" method - they find a post of interest, hit "print screen" on the keyboard, and then move onto the next post.  There are a couple issues with this approach, but we'll save that for another post.

I recommend gathering the social media information prior to a deposition of the subject.  This allows you to have a better idea of who the person is, but also gives you the ability to ask questions about the posts during a deposition.  Some litigators would prefer to save the information and use it during a cross-examination at trial.  In other words, not letting opposing counsel know you have the information.*  This is completely up to the individual and should be addressed on a case-by-case basis.

Regardless of when you use the information, prior to any questions about social media, I recommend taking away the "my account was hacked" defense.  I suggest doing this at the beginning of a deposition, right after the standard demographic questions (name, address, date of birth, etc.).  Here are some suggested lines of questioning to get you started:

1. Do you have a Facebook / Twitter / LinkedIn, etc. account?
2. Has the account ever been hacked? 
3. If so, when, how long was it out of your control, when did you get control back, etc.
4. Have you made any posts, sent any messages, etc. regarding this lawsuit?

Follow up on answers as needed.  With this foundation, it becomes quite problematic (for the other side) if the witness later decides that his or her account was hacked, especially if the hack happens to coincide with the posting of a particularly incriminating post.

When it comes time to ask about the social media posts, head-off any hearsay and other admissibility concerns by first asking if the witness made the post and whether he has any reason to question the accuracy of the post.  Then proceed with substantive questions regarding the post.

* - Of course, if opposing counsel has requested such information through standard discovery methods, you don't have much choice in the matter