Discovery of Social Media – The Treasure Hunt

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Facebook lists 800 million active users who visited the site in the last month, according to its “About” page.  Rumor has it that Twitter has somewhere in the neighborhood of 200 million registered users or 230 million tweets per day. Think of it.  A veritable treasure trove for discovery:  Photos of a personal injury plaintiff salsa dancing a week after the car accident.  An unavailable witness tweeting that he is in town.  A supposedly bankrupt defendant posting details about his newly purchased boat.  Facebook, Twitter, MySpace, LinkedIn, Habbo, Orkut, Badoo, Qzone – the list of social media sites are rich with possible impeachment evidence.

Photo of Paris Hilton at time of arrest with purse that contained cocaine

While a criminal case, the incident with Paris Hilton booked on cocaine charges is a good example of impeachment evidence.  The police pulled Paris over and found cocaine in her purse.  Paris denied the purse was hers, but was undone by her prior Tweet when she bought the purse.

If the witness is not a celebrity on TMZ (and you can pull information straight off the internet), the most direct way to obtain social media information is to ask witnesses to provide it to you.  Document requests may contain demands for downloads of photos and posts on social media pages and webmail, while special interrogatories may ask for identification of witnesses’ social media sites, user names and passwords, and access to  social media accounts.

Except from the police report detailing Paris’ denial to the police officer that the purse was hers.

Social media users, however, do not have access to native format and can only produce a screen shot or a print-out of the requested information.  Also, witnesses may sanitize their social media pages and delete all incriminating photos or other useful evidence once they know litigation is afoot.  In these situations, you may be tempted to obtain the information directly from Facebook or other social media sites, to shortcut the process and also head off any tampering allegations.

Roadblocks

The Federal Stored Communications Act

Before you subpoena Facebook or other social media sites, you

Paris’ earlier Tweet “Love My New Chanel Purse I got Today.” raised credibility issues about her later denial when she told the police officer that the purse belonged to her friend, not her.

should keep in mind the Federal Stored Communications Act,

often referred to as the “SCA,” which generally prohibits a person or entity providing an “electronic communication service” to the public from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”  It further prohibits a person or entity providing “remote computing service” to the public “from knowingly

divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.”  18 U.S.C. 2702(a)(2).    Disclosure in violation of the SCA can expose the record holder to civil liability.  Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).   The SCA applies to private information, i.e., information that is not readily accessible by the public.  The SCA has several exceptions, most notably, that it does not apply to criminal or administrative subpoenas.  18 USC 2703(b)(2) & 2703.

In practical terms, this means that subpoenas to Facebook and their ilk may possibly be quashed. Take the case of Crispin v. Audignier, 717 F. Supp. 2d 965 (C.D. Cal. 2010) where the Court partially quashed subpoenas issued to Facebook, MySpace and other social media sites.  There, Mr. Crispin sued Audignier, a clothing maker, alleging copyright infringement for use of his artistic works that went beyond the granted oral license.  Defendants subpoenaed Facebook (and other social media sites) seeking communications and wall posts from Mr. Crispin concerning his art.  Plaintiff moved to quash the subpoenas under the SCA.  The magistrate judge rejected motion to quash reasoning that Facebook and MySpace were not electronic communications services because the websites’ messaging services are used solely for public display and did not meet the SCA definition.  The U.S. District Court disagreed and noted that the SCA applied since the social media sites qualified as both Electronic Communication Services for their message delivery services and also as Remote Computing Services because they offered message storage services.

The Court found the communications at issue, both the webmail and email, were inherently private because they were not readily accessible to the public and quashed the subpoenas for those messages.   The Court required a new evidentiary hearing to determine the privacy settings on Facebook and MySpace accounts and made no finding about the general discoverability of the public wall posting and comments.

Other cases have permitted subpoenas to social media sites, despite the SCA.  In Ledbetter v WalMart Stores Inc., the Colorado District Court denied the plaintiffs’ motion for a protective order for their Facebook, MySpace and Meetup.com pages.  Plaintiffs sought damages for personal injuries when the electrical system they were working on shorted out. One of the plaintiffs’ wives brought a claim for loss of consortium.  The court determined that the plaintiffs had placed their personal physical and mental states at issue  and permitted the subpoenas.  2009 Dist. LEXIS 126859 at 4-5 (D. Colo. Apr. 21, 2009).

Right to Privacy

In addition to the SCA, privacy concerns may also be the source of objections, but whether they survive is an undecided question in California.  Other states’ cases offer their own line of reasoning on privacy issues, which may or may not be in line with California’s Constitutional right of privacy.  Cal. Const. Art. 1, § 1.

In Romano v Steelecase, 907 N.Y. S2d 650 (2010) a New York trial court held that the private portions of a personal injury plaintiffs’ Facebook and MySpace pages were discoverable.  The court reasoned that neither Facebook nor MySpace policies guaranteed complete privacy, therefore there could be no legitimate reasonable expectation of privacy in the private portions of current and historical pages of those websites.  There, the Court found that the public portions of the plaintiff’s social media sites contained material that was contrary to her claims and deposition testimony and that there was a reasonable likelihood that the private portions of her sites might contain evidence that the plaintiff traveled and was happy (when plaintiff had claimed she was housebound and miserable).   The Court ordered the plaintiff to give defendant direct access to log in and view her Facebook and MySpace accounts and have access to all records, including archived and deleted records.

Similarly, the Pennsylvania case of McMillen v. Hummingbird Speedway, Inc., 2010 Pa.Dist.& Cnty.Dec. LEXIS 270 (Pa. County Ct. Sept. 9, 2010), involved a broad discovery statute which provided that unless there is a specific privilege that applied to withhold discovery, information must be produced.  The defendant had heard that the personal injury plaintiff had been on a fishing trip and to prove that the injuries were not as serious as the plaintiff as making them out to be, defendant moved to compel plaintiff’s user name, log-in names, and passwords.  The plaintiff asked the Court to recognize that communications shared among one’s private friends on a social network was confidential and protected from disclosure.  The Court reviewed the Facebook privacy policies, which said that your posts may show up on your friends’ posts, and warned users that you may be then at the whim of your friends’ privacy settings.  The Court found no privacy interest in a Facebook password and no corresponding Facebook privilege.  The Court directed plaintiff to not delete his posts or alter existing information on this Facebook or MySpace account.

There may be no significant difference between discovery of social media and discovery of other electronically stored information.  In EEOC v. Simply Storage Management 2010 WL 3446105 (S.D. Ind. May 11, 2010), the defendant asked for photos, videos, postings and profiles from two sex harassment claimants’ Facebook and MySpace accounts to discount their mental health damages.  The EEOC objected to the request as harassing and embarrassing and that it improperly infringed on claimants’ privacy.  Defendant moved to compel.  The court explained that discovery of social media simply “requires the application of basic discovery principals in a novel context.”  The Court rejected claimants’ privacy arguments, stating 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.”

California has not directly addressed the privacy in social media issue in a discovery context, but the California Court of Appeal has opined that there can be no reasonable expectation of privacy in a public MySpace post.  In Moreno v. Hanford Sentinel, Inc., 9 C.D.O.S. 4208 (2009) a college student from a small town wrote an unflattering ode in her MySpace journal.  She later removed the post, but it had already been republished in the local newspaper.  The community reaction was negative, forcing the student’s family to move and close the family business.  In shutting down the invasion of privacy claim, the Court determined that “no reasonable person would have an expectation of privacy regarding published material” on MySpace, as it was a “hugely popular” social networking site and her potential audience was large.

Authentication and Credibility

Apple allegedly doctored another photo to try to make Samsung look guilty of design patent infringement.

The evidence gained from social media is still subject to all the standard tools to test the authentication, admissibility, and credibility of the evidence.  Recently, Ashton Kutcher, the veritable king of Twitter, admitted that he did not personally answer or post all of his Tweets.   A wall post may not truly reflect the reality of what happened that day.  Photos of tagged witnesses may have been photoshopped or altered.

In a patent infringement case, Apple sued Samsung for allegedly copying the iPhone.  Samsung shot back and alleged Apple submitted a photoshopped image of a Samsung Galaxy S to support its preliminary injunction.  The photo in question contains side-by-side comparison of the Galaxy and an iPhone 3G in which the smartphones appear the same size, despite the Galaxy’s larger size.

Tools for Preservation and Disclosure

What is the best way to preserve social media during discovery?  There are services such as Iterasi and Smarsh which offer to capture, preserve and archive email and webpages from social media sites. The old fashioned way of printing off hard copies or saving to Adobe Acrobat static frozen images works as well.

Another discovery tool is to request that the opposing party complete and sign a form that authorizes Facebook to disclose information from the party’s own pages.

Social Media as Part of Your Discovery Plan

Social media sites can give you a personal, fascinating and informative glimpse into witnesses’ lives and their ways of thinking.   These sites are  rich with information to be discovered and investigated, keeping in mind the limitations and roadblocks you may encounter along the way.  Discovery plans should consider the costs and benefits of pursuing this information and be integrated into the overall trial plans.   Further, these investigations should also highlight the importance of the discussions you have with your own client and their on-line activity.   In all, you would be well served to investigate and use the benefits of social media to your client’s advantage.


Audrey Gee is a founding partner of Brown Church & Gee, LLP, a business centered law firm that offers a fresh approach to legal services.  Audrey brings over 16 years of experience to a practice that focuses on litigation and management side employment counseling and risk management.   Audrey’s litigation practice has included representation of multi-billion dollar companies in contract disputes, defending publicly traded homebuilders in complex multi-plaintiff construction claims, and handling a broad range of business, real estate, employment and intellectual property disputes.   Audrey is the incoming President of the CCCBA for 2012.

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