Social Media and Discovery in Litigation
Facebook, Twitter, LinkedIn, Pinterest, Google+, MySpace, YouTube . . . the list goes on and on. The proliferation of social media outlets and networking sites makes it easy for people to be noticed and to connect with others. Technology creates opportunities for us to expand our public image – and its fun too. But is it all good? It certainly can offer dramatic results in detecting fraud and dishonesty when claimants/plaintiffs post evidence of activities which they contend in personal injury claims/lawsuits they can no longer perform. For sporting goods product manufacturers defending defect and negligence lawsuits, social media behavior can be a powerful tool for the defense. But will the judiciary allow defendants to pierce the privacy of plaintiffs? You and your clients need to be aware of the risks of this type of exposure and privacy issues that arise once they become a party in a lawsuit. Social media is creating new challenges in the context of litigation.
Discovery is a large part of the litigation process. Surveillance and other methods of investigation are deployed to “catch” a party in an “act” that is inconsistent with his or her claims. Beyond revealing a less than candid claimant, texting and tweeting in real time and live video now capture exactly what happened at the accident and immediately afterward. Like never before, the defense may have the opportunity to gain access to the instant impressions of the plaintiff and eyewitnesses to the events. Social media is a real factor to be considered in litigation. Specialized internet investigators are available for hire to track down sites, email messages, photographs, videos, and other information about parties involved in lawsuits. Risk managers and defense lawyers are watching the evolution of case law that is making the rules for the new discovery game.
Federal Rule of Civil Procedure 26 (b)(1) says that unless otherwise limited by a court order, “the scope” of discovery is:
"... any nonprivileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of persons who know of any discoverable matter. For good cause, the court may order the discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence...”
Most states mimic F.R.C.P. 26 in their rules of procedure governing what can be discovered.
Certainly a photograph of a plaintiff playing a lacrosse game dated and posted on the internet two weeks after his head injury in a lacrosse game accident is relevant and good evidence to dispute the alleged damages. A video of a claimant dancing at a wedding posted on the internet after her snowboarding accident caused by a faulty release would be beneficial to dispute an ongoing ankle injury. And a video posted on the internet by an eyewitness showing a plaintiff drinking a beer before diving into a swimming pool would be useful evidence in his spinal cord injury claim based on a failure to warn. Not all of this information is in the public arena merely because of access to the internet or other subscribers to social media. Some of this information is marked “private” by the user or accessible only to certain users or “friends.” As time goes on, the number of social medial sites is expected to increase, as is the technology involved in the use and storage of information involved. The courts are now responding as parties and their lawyers are seeking this information in the litigation discovery process.
In Pennsylvania, although there have been no appellate court decisions on the issue of discovery requests for information contained on Facebook profiles, various trial courts have issued opinions worth reviewing. Login and password information are requested in discovery in order to gain access to private portions of profiles. Plaintiffs are also asked not to delete material from those profiles. The trial courts view these requests on a case by case basis, but typically require some showing that the public portions of the profile contain some relevant information in order to gain access. Information on how and how often an individual uses a particular social networking site is important to obtain. The courts will conduct a balancing test in determining whether there is any privilege based on a reasonable expectation of privacy by the user and holder of the profile and relevancy.
Courts in other jurisdictions have ordered parties to produce photographs or content from a social media site posted during a specific time period at issue in a case. Counsel are granted access to view the information to evaluate relevance. Courts are holding in camera reviews. Generally, the courts will protect privacy unless it is shown that the information requested is relevant to the litigation. Using public profile information that is inconsistent with the claims involved in a case should be sufficient to persuade the court to allow access to private profile information.
Ethics come into play when investigating social media sites. Unethical access to private information will trigger not only restricted access but also strip the useful evidence from the case. It is unethical for a lawyer (or a third party of behalf of the lawyer) to connect with a plaintiff in a case that the lawyer is defending to attempt to gain access to private profile information. Social media can be used as both a sword and a shield. Companies must manage not only their own websites, but also the posts to Facebook and Twitter. Internet marketing tactics inundate us with requests to “like” our companies. But our websites and employees can create posts that can be difficult to explain. Enact a policy to monitor and actually review what your customers are saying about your products. Be aware that advising a client to delete their social media website and Twitter information to avoid discovery of the same constitutes spoliation and may lead to sanctions imposed not only against the client who deleted the information, but also against its counsel.
Become familiar with the different forms of social media and how they can be properly used as part of the discovery process in litigation. Make sure your legal claim tailors interrogatories, document requests, and deposition questions to gather evidence about social media use. Good luck and good hunting. When in doubt about how to access or use social media evidence contact any member of the SGMA Legal Task Force for the latest tactics and techniques.