All posts tagged Facebook

Learning to “Like” Social Media EDiscovery

There is no way around it—social media has become an integral part of our everyday communication. It is no longer just some fleeting trend among the cool and hip. The use of social media has increased exponentially in the past few years. Evidence? How about these numbers:

  • Facebook has exceeded one billion users
  • Twitter has more than 500 million users

Social media is also no longer limited to personal use. Approximately 80 percent of companies now use social media to market products and build consumer relationships. Not only is social media a staple in everyday communication, it is now smart business.

While “friending” and “tweeting” provide numerous benefits, legal professionals have been anxiously mulling over the numerous challenges of social media ediscovery. In 2012, issues related to privacy, discoverability, preservation, collection and authentication of such data permeate discussion amongst courts, litigators and commentators. Although governing standards have yet to emerge on these issues, expect best practices regarding social media to continue to evolve.

  • Discoverability –

    As demonstrated by E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc.,[1] many courts have favored broad discovery. There, the court reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. However, other courts have rejected broad discovery of such data, finding that the Federal Rules do not grant a generalized right to rummage at will through information a person has limited from public view.[2]

  • Preservation and Collection –

    Due to the intricacies of social media electronically stored information (ESI), which is frequently changing and retained by the platform provider on remote servers, preservation is no easy task. Additionally, social media collection options such as taking screenshots and proxy monitoring are still rudimentary at best. Regardless of the method chosen, counsel must start early, obtain consent and request login information before collecting.  Counsel should also consider retaining an expert to avoid potential issues later on in the discovery process.

  • Authentication –

    The contents of these sites are not self-authenticating documents, so legal professionals often have to be proactive to ensure the account holder posted the relevant information. Best practices suggest that practitioners should collect as much evidence as possible—including subscriber reports from the service provider and relevant metadata—to resolve questions about ownership, access to the account and authorship of the post.

Practices and laws regarding social media ediscovery will remain in a constant state of change. Ignoring social media is no longer feasible, practical or defensible. At the end of the day, legal professionals must “follow” or “like” such change to stay ahead of the curve or at least ride the crest of the wave.


[1] 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

[2] Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012)

Case Law: Offenback v. L.M. Bowman, Inc

Case Law

Court Chides Plaintiff for Not Reviewing Own Facebook Account for Responsive Information

Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff’s Facebook and MySpace accounts, arguing the plaintiff’s claims of physical and psychological impairment made relevant any evidence that documented the plaintiff’s social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court’s assistance if a dispute remained.

Commentary

The discoverability of social media continues to be a popular topic throughout the industry. Now we want to know – what is your company or firm doing to address social media? Have you encountered the need to preserve, review and produce this evidence?

Case Law: In re Facebook PPC Adver. Litig.

Case Law

Court Orders Parties to Meet and Confer to Develop Discovery Plan and Resolve Production Disputes

In re Facebook PPC Adver. Litig., 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011). In this breach of contract litigation, the plaintiffs sought resolution of various production disputes including a disagreement regarding the development of an Electronically Stored Information (ESI) Protocol. Rejecting as speculative the defendant’s concern that entering an ESI Protocol would frustrate and slow the discovery process, the court ordered the parties to meet and confer to develop an ESI Protocol in light of the “clear thrust of the discovery-related rules, case law, and commentary,” including the Federal Rules of Civil Procedure, case law and the Sedona Conference® that suggest communication is crucial to a successful discovery process. Turning to the production disputes, the court prohibited the defendant from using a secure and restrictive document-viewing website in lieu of actual production, finding the website was unduly burdensome, inefficient and unnecessary in light of a two-tiered protective order. The court also ordered the defendants to reproduce unusable, non-searchable files – including an 18,000 page customer complaint database – in their native format, disclose relevant source code, and meet and confer to determine the appropriate method of production for proprietary documents relating to the dispute.

Commentary

In this case, rather than producing certain documents, the defendant uploaded them onto website, watchdox.com that provided the plaintiff with viewing access, but gave the defendant the ability to limit it in significant ways: restrict access, track viewer activity, set document expiration dates and prohibit searching, annotating and printing. The defendant’s justification for the use of this service in lieu of actual production was that it was necessary to protect the disclosure of “extremely sensitive and confidential” documents. As noted in the summary above, the court denied these justifications and noted that the two-tiered protective order (which the defendant agreed to be bound by) provided sufficient protection to obviate the website’s use. Accordingly, the court ordered the defendant to stop using the website and produce the documents in had uploaded to the plaintiff in a fully accessible form.

Although this opinion is relatively brief in length and scope, it involves certainly a creative attempt to circumvent the more traditional methods of production. After all, cases involving parties withholding documents altogether are very common, but a party offering only limited access via a secure portal is a relatively novel development in the ediscovery world.

This case demonstrates the importance of reaching an agreement regarding the use of these solutions at the meet and confer. The court’s opinion seems to indicate that if the parties had agreed to use the restricted viewing technology before discovery began, it may have been permitted. Taking the time to meet and confer and negotiate mutually beneficial production agreements can pay dividends by potentially avoiding unnecessary, expensive discovery disputes and protecting important party-specific interests.

Want to learn more about this case? Listen to our recent ESI Report podcast that delves into case facts, specifics and lessons to be learned

Case Law: Muniz v. United Parcel Service, Inc.

Case Law

Court Quashes Subpoena Seeking Information from Social Networking Sites Related to Fee Request

Muniz v. United Parcel Service, Inc., 2011 WL 311374 (N.D. Cal. Jan. 28, 2011). In this gender discrimination litigation, the plaintiff moved to quash the defendants’ subpoena seeking additional documentation related to the plaintiff’s previous motion for attorneys’ fees. Among the documentation sought by the defendants were postings by the attorney on listservs and social media networks (including LinkedIn and Facebook). To demonstrate the relevancy of the demand, the defendants submitted postings from the attorney’s Facebook page and listservs. Denying the defendants’ request, the court found the subpoena was not appropriately geared toward revealing information relevant to the fee dispute and ordered the postings submitted by the defendants to be removed from the record.

Commentary

Although this particular opinion does not address direct ediscovery issues, it does present a growing challenge faced by lawyers and corporations alike – the increasing impact of social media in the courtroom. Social networking sites continue to grow in popularity and use for both personal and business reasons, which is clearly demonstrated by the fact that Americans spend 22.7 percent of their time using these sites (in addition to blogs) as of June 2010, which represents a 43 percent increase from June 2009.[1]

Muniz raises a novel issue posed by social networking sites, wherein opposing counsel seeks justification for fees sought by referencing the attorney’s thoughts, opinions and statements made on various social media outlets. Although the court denied the request in this case, courts in various jurisdictions are increasing being pulled into the virtual world as the content on these sites become integral to disputes. In the civil context, the primary driving issue has been the distinction between private versus public content. For example, in Romano v. Steelcase, the New York State Supreme Court granted the defendant’s request to access the plaintiff’s current and historical Facebook and MySpace pages after finding the content contained within the public portions of those sites to be relevant. A popular quote from that case carries an advisory tone for those hoping to rely on privacy settings within the social networking sphere: “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

Likewise, in Equal Employment Opportunity Commission v. Simply Storage Management, LLC, the Southern District of Indiana granted the production request that sought profiles (including postings, pictures, blogs, messages, personal information, list of friends or causes) from Facebook and the MySpace accounts. The court denied the party’s privacy claim, finding “Facebook is not used as a means by which account holders carry on monologues with themselves.” The court also determined that content on these sites will not be shielded from discovery simply because it is listed as private.

Although the body of case law in this area is sparse, the fact remains that social networking sites are indeed discoverable. Corporations and practitioners should undertake efforts to manage social media effectively, and determine how this new found evidence gold mine impacts discovery strategies, including the preservation, collection and production stages of the e-discovery process. Proactive measures, including education and consulting with an expert service provider, will go a long way to ensuring you are ready to address this challenging issue when it inevitable arises.


[1] The Neilson Company, “What Americans Do Online: Social Media and Games Dominate Activity”, available at http://blog.nielsen.com/nielsenwire/online_mobile/what-americans-do-online-social-media-and-games-dominate-activity/. Last accessed March 18, 2011.

Facebook Status: No Expectation of Privacy

Like any other electronic evidence, information communicated through social media – such as Facebook, MySpace or Twitter – is discoverable if it is reasonably likely to be relevant, is non-privileged and is not deemed overly prejudicial. Nevertheless, as is common when new technologies hit mainstream, the discoverability of these mediums has not seen a swift response by the courts. Further, the courts that have addressed these sites often differ in their analysis and conclusions, lending an air of unpredictability. Despite the inconsistencies and the fact that there are still relatively few cases involving social networking sites in the civil arena, important lessons can be gained in examining these rulings and potential evidence gold mines.

To date, the most prominent issues that are disputed in social media ediscovery cases involve the questions of privacy and, by extension, relevance. For example, addressing privacy concerns in an artwork licensing dispute, Crispin v. Christian Audigier, Inc.,1 the District Court of Central California ruled that under the Stored Communications Act (SCA), messages sent on Facebook and MySpace are private and do not need to be produced during discovery in a civil lawsuit. Furthermore, “wall postings” may be private depending on a user’s privacy settings. In other words, if Crispin had restricted his wall postings to be viewable only by his “friends,” his status updates would be considered private.

In at least three other cases, however, courts have ruled that wall postings are discoverable regardless of privacy settings, and have even concluded that e-mail communications sent over social networking sites may not be considered private. A notable similarity in these three cases was that the courts determined the information sought was particularly likely to be relevant to explore claims put at issue by the opposing party.

First, in Romano v. Steelcase Inc.,2 a personal injury action, the court allowed the defendant broad access to the plaintiff’s current and historical Facebook and MySpace pages to look for information inconsistent with the plaintiff’s claims concerning the extent and nature of her injuries. Having found relevant information on the public portions of these sites, the court deemed it reasonably likely that the private portions would be similarly useful. Like Crispin, this case involved analysis under the SCA. However, recognizing that Facebook and MySpace published privacy disclaimers, and that the stated purpose of such sites is sharing personal information, the court emphatically remarked that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

A different court followed an almost identical line of reasoning in another personal injury case, McMillen v. Hummingbird Speedway, Inc.,3 and held that both the public and private portions of the plaintiff’s social networking sites were discoverable in order to disclose information as to whether he exaggerated his injuries. Finding no reasonable expectation of confidentiality or a need for privilege outside of attorney-client communications, the court ordered the plaintiff to preserve information contained on his social networking sites and to provide his user names and passwords to opposing counsel.

In Equal Employment Opportunity Commission v. Simply Storage Management, LLC,4 the Southern District of Indiana ordered production of Internet social networking site profiles and other communications from Facebook and MySpace accounts. In this employment discrimination case, the court expressly included in the meaning of “profiles” the postings, pictures, blogs, messages, personal information, lists of “friends” or causes joined that the user placed or created online through her account. Also, similar to Romano and McMillen, the court denied a party’s privacy claim barring the need for production where the party placed the emotional health of the particular claimants at issue. Presaging the sentiments expressed in Romano, the court stated, “Facebook is not used as a means by which account holders carry on monologues with themselves,” and held that content is not shielded from discovery simply because it is “locked” or “private.”

Interestingly, EEOC stands in contrast to McMillen and Romano on a key point. Rather than allowing broad access or requiring production of passwords, the EEOC court addressed concerns about relevance by calling on counsel “to make judgment calls – in good faith and consistent with their obligations as officers of the court – about what information is responsive to another party’s discovery requests. … Discovery is intended to be a self-regulating process that depends on the reasonableness and cooperation of counsel.”5

Finally, a unique case on the topic of social networking was issued by the Middle District of Tennessee in June 2010. In the case, Barnes v. CUS Nashville, LLC,6 the magistrate judge offered to create a Facebook account which would allow the witnesses to accept the judge as a “friend” for the sole purpose of reviewing photographs and related comments in camera. Following this review, the account would be deleted. In addition, the magistrate judge reviewed submitted materials from the plaintiff’s Facebook account and found one message, seven pictures and the accompanying metadata to be relevant to the case.

The overall trend of the judiciary seems to be moving toward greater permissiveness for ediscovery with regard to social media, as well as a strong likelihood that privacy concerns will be outweighed by the weight and relevance of the information. Consequently, as corporate use of social media continues to increase, counsel’s role should include advising clients on best practices for social media ediscovery, employee usage policies and corporate practices.

1 2010 WL 2293238 (C.D. Cal. May 26, 2010).

2 907 N.Y.S.2d 650 (Sept. 21, 2010).

3 No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010).

4 270 F.R.D. 430 (S.D. Indiana 2010).

5 Id.; see also Mackelprang v. Fidelity Nat’l Title Agency, 2007 WL 119149 (D. Nev. 2007) (court declines to compel production but instructs defendant to follow ordinary discovery procedures to request relevant and not overly-prejudicial e-mail communications sent through social networking sites).

6 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

Social Media Data Collection Best Practices

In a vastly changing environment of social whims and woes, social media sites remain a dominating force in connecting the public, businesses and government entities to one another.

Social networking has become so common that hundreds of millions of users subscribe to and communicate using social media sites each day. Indeed, Facebook’s global audience has blossomed to more than 465 million users, with more than 125 million in the United States alone.1 The growing prevalence of social networking sites, especially in the corporate environment, presents unique challenges. Attorneys and IT experts must take steps to understand the best and worst practices in preserving, reviewing and producing electronic data from these sites in order to obtain evidence that may make the difference in an investigation.

Investigation Techniques

When capturing data from social media sites, investigators often use video cameras to record relevant information from a user’s Web page. In more advanced, technical circumstances, capturing software is the preferred method in recording a user’s Internet activities. This capturing software allows for easy navigation while recording images, conversations, posts, messages or videos. Although hard copies of the data are always acceptable, courts readily favor capturing software during the review process to save time and money.

Investigators are also at liberty to freely search and extract information from an open page. For instance, many Facebook users leave their profiles open so anyone searching for their name can access their profile content, including wall posts, comments and pictures. Twitter also makes an exorbitant amount of information available to the public, and courts often follow “tweets” back to the original conversation, allowing the introduction of such information as evidence if useful to the litigation at hand.

Even if profiles are set to “private,” investigators have access to a number of tools which can further data collection efforts. Despite privacy blocks, security settings can be rerouted to some extent through methods such as searching blog posts or other website content, or by using people search engines. One common Web-based tool that allows an investigator to access older information is the Wayback Machine. This website records data from the past and affords investigators the ability to sift through information showing them what certain websites once looked like. As a result, even though private information may be currently blocked or secure, investigators can still produce electronic evidence or other data that may have been “public” at one point in time.

In addition, sites like Twitter, BoardReader and Bing are developing more advanced search engines which will be able to quickly recall and locate information stored or communicated through social media sites. These new search engines can identify and characterize social media users, preserve older data communicated and produce electronic evidence with a few clicks of the mouse. For these reasons, investigators need to use search engines and other repositories to collect and review data in addition to using sites like Facebook and Twitter.

Avoid Investigation Hazards

It is important to note that not every piece of information on the Web is useable or defensible. Due to confidentiality, privacy and security concerns, most courts will not allow a person to falsely represent themselves as a “friend” to collect data. This is known as “friending someone under false pretenses.” If an individual accesses the private data of another under an alias, or if the person being “friended” is unaware of the individual’s true intentions, courts will not hesitate to disregard information obtained involuntarily or without a user’s actual knowledge.

Even if data from an individual’s social networking page is lawfully obtained through a judge’s order, other evidentiary issues present concerns for investigators. Although an attorney may have found the “smoking gun” evidence, information gleaned from social media sites holds profound hearsay concerns, both in respect to whether they are intended to be “used for the purposes of communication” and whether they are authentic. Attorneys who engage in simple copy-and-paste efforts or screen prints face significant hurdles when trying to get this information admitted into evidence. To combat these hurdles, experts are often used to extract, produce, review and testify on social media data. Experts can capture the evidence in a way that correctly identifies the questions of “who,” “what,” and “where” that juries or judges consider when observing electronic evidence. This identification will help address any authentication issues posed by this evidence.

Conclusion

Although the way we collect social media data is still evolving, one thing is certain: social media will continue to grow as an important data source to consider when conducting an investigation or engaging in litigation. Ultimately, attorneys and IT experts must ensure that steadfast preservation, review and production techniques are implemented. Because even the savviest of attorneys and IT experts may experience preservation or production issues when collecting social media information, be sure to consult with an expert to bolster the credibility and defensibility of the investigation.

Special thanks to Dave E. Canfield, E.J.D., Managing Consultant in Kroll Ontrack’s Electronically Stored Information (ESI) Consulting group. In his role, Mr. Canfield assists clients in the creation of discovery, data collection and case management strategies, and with the creation of systematic processes and documentation to support repeatable, efficient and reliable electronic discovery procedures. Mr. Canfield may be reached for questions at: dcanfield@krollontrack.com.

1http://www.checkfacebook.com/, last accessed June 7, 2010.

Think Before You Post – Rising Use of Social Site Evidence

Facebook has arguably succeeded in its mission to “give people the power to share and make the world more open and connected.”1 Unfortunately, an ever-increasing number of people are starting to discover that sharing so much information is not always a good thing.

Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure specifically address social networking sites, but many courts nonetheless consider social site evidence to be an admissible form of electronically stored information (ESI).

For now, courts consider private content contained on social networking sites to be protected under the Stored Communications Act (SCA), making disclosure of this information difficult to compel. In Crispin v. Christian Audigier, Inc.,2 the District Court of California granted the plaintiff’s motion to quash subpoenas issued to sites including Facebook and MySpace on the grounds that they fall within the definition of an electronic communication service provider (ECS). Note that extending SCA protection precludes subpoenas issued in civil suits; however, it does not prevent the information from being subpoenaed in a criminal investigation.

On the other hand, public content is fair game. Savvy litigators have wasted no time using status updates, wall postings, pictures and other profile information to investigate witnesses, prospective jurors and opposing counsel in an effort to help develop well-tailored trial strategies.

Courts across the country are also permitting the use of social site evidence at trial. Recently, the Maryland Court of Appeals affirmed that the identifying information in a MySpace personal profile, such as the person’s photograph, date of birth and family references, could be used to link the page to the person – even when pseudonymous and anonymous profile names are used.3

Social site evidence can wreak serious havoc on a case. With popularity of these sites on the rise, companies, employees and litigators must remember to be:

  • Aware: Information visible on social networking sites is admissible as evidence, so think before you post.
  • Proactive: Explore the increased security settings available on these sites, and consider suspending activity or removing profiles when engaged in litigation.
  • Savvy:Recognize the strategic value of these sites to your own case, and take advantage of the information early.

1Facebook’s mission statement (last accessed July 16, 2010).
2 2010 WL 2293238 (C.D. Cal. May 26, 2010).
3 Griffin v. State, 2010 WL 2105801 (Md.App. May 27, 2010).

Case Law: Romano v. Steelcase Inc.

Case Law

Privacy in Social Networking Sites Grounded in ‘Wishful Thinking’

Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). In this personal injury action, the defendants sought access to the plaintiff’s current and historical Facebook and MySpace accounts, including all deleted pages and related information, which may have contained information inconsistent with claims the made concerning the extent and nature of the plaintiff’s injuries. The court found that the public portions of the plaintiff’s social networking sites contained content material and necessary to the litigation, and discerned a reasonable likelihood that the same would hold true as to the private portions. Despite the plaintiff’s objections on privacy grounds, the court cited privacy disclaimers in the MySpace and Facebook policies and held that production of the plaintiff’s social network account entries would not violate her privacy rights. The court also found the defendant’s need for the information outweighed any privacy concerns, and determined that preventing access would directly contravene the strong public policy in favor of open disclosure and condone attempts “to hide relevant information behind self-regulated privacy settings.” Noting that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking,” and that sharing personal information with others “is the very nature and purpose” of social networking sites, the court ordered the plaintiff to provide necessary authorization for access.

 
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