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Whaley: Adventures in e-discovery and social media

July 30, 2014
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Indiana Lawyer Focus

 

whaley Whaley

By Alan Whaley

It’s no secret – the use of social media is commonplace and widespread. Online statistics say that Facebook had over 1.2 billion active users in the first quarter of 2014, and Twitter has 255 million active users sending 500 million messages a day. And social media is not just for individuals anymore; organizations use it on a large scale, too. According to a study by the University of Massachusetts Dartmouth Center for Marketing Research, as of July 2013, 77 percent of Fortune 500 companies were on Twitter, and 70 percent of them had Facebook accounts.

With all this social media use, it is not surprising that social media can have a significant impact on litigation and discovery. Occasionally something dramatic provides a cautionary tale, like the confidential settlement in a Florida employment discrimination case that the defendant private school voided when the plaintiff’s daughter bragged about it on her Facebook account. But there are many aspects of social media which, while not flashy, present interesting e-discovery challenges.

Relevance, scope of discovery

Some litigants have tried to take the position that their social media content should not be discoverable because some of it is personal and revealing it could be embarrassing. That argument usually doesn’t work. As with other kinds of evidence, social media content is potentially discoverable if it is relevant to the issues in a case. For example, the courts in EEOC v. Simply Storage Mgt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), and EEOC v. Original Honeybaked Ham Co. of Georgia, 2012 WL5430974 (D. Col. Nov. 7, 2012), both ruled that defendants in sexual harassment cases were entitled to discover some content posted on plaintiffs’ social media sites because it was relevant to the plaintiffs’ claims of emotional distress and financial injury.

The information deemed discoverable was not limited to content that directly addressed or commented on the issues in the litigation, nor was it limited to the public portions of the plaintiffs’ social media profiles. Most courts do not accept the argument that a party has a privacy interest in protecting information posted to a social media account, even its non-public sections. But they are also reluctant to order that all of a party’s social media content is discoverable. So they devise guidelines or methods to identify only the relevant content. In the Honeybaked Ham case, that involved appointing a forensic consultant as a Special Master to help filter through some of the information, and the court’s in camera review of other content. The cost of the consultant was shared equally by the parties.

Access to data

Knowing a party has social media content that may be relevant is one thing; getting access to it is another. A significant factor in seeking access to another party’s social media content is the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA was written in the mid-1980s, before the advent of the World Wide Web, and it presents an often cumbersome framework that courts have found to be an imperfect fit when applied to social media. But it prevents Internet service providers from supplying access to the non-public electronic communications of their subscribers, so simply sending a civil subpoena to Facebook will get you nowhere, and in some courts will be sanctionable as an overreaching discovery tactic.

There are exceptions under the SCA for government-issued subpoenas and warrants, and the analysis in a given case will depend somewhat on whether a provider is deemed to be an “electronic communication service” provider or a “remote computer service” provider under the statute – and sometimes the same provider can be both an ECS and an RCS. In addition, sometimes the type of data storage (Is it “temporary?” Is it “backup?”) determines whether the SCA applies. Parsing through the nuances of these definitions is beyond the scope of this brief article, but the upshot is this: it will be difficult if not impossible to force an ECS or RCS provider to provide access to social media content without the consent of the subscriber. If the subscriber won’t give consent voluntarily, one option is to seek a court order directing that the consent be given.

Preserving data

One significant aspect of electronic data is that it frequently changes, and that is especially true of social media content. Therefore, at the beginning of a case it may be particularly important to try to preserve the status of another party’s social media information. You can do this with a preservation notice to that party, or if you think additional measures are needed, consider a preservation request to the service provider or even a “preservation subpoena” and motion filed with a court.

Authentication

If a party has obtained social media content and needs to get it into evidence, authenticating that evidence may become an issue. One approach is to preserve and print a static image from a social media account – that can easily be done with a party’s public social media posts, for example. But the personal testimony of an authenticating witness, like the person who collected and printed the image, will probably be necessary. And with some kinds of content, like video or audio materials, special software and the assistance of a forensic computer consultant may be needed.

Other issues

There are social media issues that practitioners should at least be aware of. These include identifying who actually has possession, custody or control of social media content – sometimes, it’s not exclusively the subscriber. And there are very important ethical considerations affecting how a lawyer should use social media, both in the discovery context and otherwise. For example, it is widely considered unethical for a lawyer to “pretext” – that is, to seek “friend” status under false pretenses to gain access to someone’s social media content. And using social media recklessly, such as through blog posts or online comments, can invite trouble for lawyers and judges. In an information environment that can sometimes seem like the Wild West, circumspection is good policy.•

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Alan (Skip) Whaley is a partner in the litigation and appellate practices of Ice Miller LLP. His practice focuses particularly on health care and product liability cases, e-discovery, confidentiality and privacy issues, regulatory and licensing matters, and risk management. He can be contacted at 317-236-2362 and whaley@icemiller.com. The opinions expressed are those of the author.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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