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Top 5 Ediscovery Case Summaries – February, 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case summaries for February, 2013.

Court Elaborates on the Standard for Bad Faith Spoliation in Patent Infringement Case
Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013).

Defendant Insurance Company Cannot Investigate Nonpublic Sections of Plaintiffs’ Social Networking Accounts
Keller v. National Farmers Union Property & Cas. Co., 2013 WL 27731 (D. Mont. January 2, 2013).

Court Imputes the Culpable Mind of Defendant’s General Counsel to Defendant Corporation
Day v. LSI Corp., 2012 WL 6674434 (D. Ariz. Dec. 20, 2012).

Federal Court Rules for Further Briefings on Reasonableness of Fee Request under State Law
E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 2012 WL 6540072 (E.D. Va. Dec. 13, 2012).

Cell Phone is Not a “Facility” Protected by the Stored Communications Act
Garcia v. City of Laredo, 2012 U.S. App. LEXIS 25370 (5th Cir. Tex. Dec. 12, 2012).

To read more ediscovery case summaries, visit our resource library.

Ten Tips for Managing Social Media in Ediscovery

Ten Tips for Managing Social Media in Ediscovery

With increasing frequency, companies across the globe are leveraging social networking tools to effectively market products and build consumer relationships. However, for an unprepared litigant, a discovery request can quickly go sour due to the dynamic nature of information stored on these sites. Below are ten tips to help manage risks and meet discovery obligations associated with social media.

  1. Start preparing now.  The Federal Rules of Civil Procedure consider “any type of information stored electronically” discoverable—which generally includes data from social media.1 Although case law is still developing, Gartner predicts that by 2013, 50 percent of all companies will have been asked to produce material from a social media site for ediscovery.2 To avoid being blindsided by a request for such data, corporations and counsel should start managing social media now.
  2. Issue litigation holds early. Since social media data is discoverable, the duty to preserve falls on the parties named. However, several preservation challenges arise due to the unique nature of the data, which is not only constantly changing, but also password protected and stored on remote servers. Furthermore, there are few reliable technologies available to preserve this data. Based on these factors, timing is critical for proper preservation: if litigation is anticipated, all relevant data should be identified immediately and litigation holds should be issued to account holders and service providers.
  3. “Privacy” settings will not protect social media data from discovery. Although a uniform standard has yet to emerge, the judiciary generally seems to be moving toward greater permissiveness for the discoverability of social media. Based on recent decisions, there exists the strong likelihood that privacy concerns will be outweighed by a sufficient showing of relevance. Notably, courts have reasoned that the very nature of these sites requires disclosure,3 dismissing expectations of privacy as “wishful thinking.”4
  4. Obtain consent before collecting data. Social media data is usually retained solely by the service provider, and collecting it without consent of the user can violate federal or state wiretapping laws. Before attempting to access any information from a social networking site, make an effort to obtain the user’s consent or a court order.
  5. Don’t “false friend” to collect from social media. Courts and ethics committees strongly disfavor “friending” under false pretenses. Thus, anyone investigating a user cannot represent him or herself as a “friend” in order to gain access and surreptitiously collect data.5
  6. Avoid self-collection. In contrast to e-mail, servers or hard drives, collecting social media data collection is akin to existing web collection practices using page captures or web crawlers. To ease the collection process, sites like Facebook offer a “download your information” option. However, as in any data collection scenario, self-collection risks spoliation, so it is always smarter to collect with the assistance of an expert consultant.
  7. Leverage a service provider to conduct review.  Arranging collected information for review poses several challenges, such as whether “families” must be maintained or whether each user’s collection should be presented in a single review document. These questions are better addressed when discussed with a service provider to ensure the most seamless review possible.
  8. Consider pertinent laws, such as the Stored Communications Act. Courts are beginning to order production of social media data. However, the Stored Communications Act (SCA) prohibits “Electronic Communication” and “Remote Computing” providers from divulging the content of its users’ communications and data.6 Case law relating social media production to the SCA is scarce; however, the Central District of California determined that social media sites acted as both Electronic Communication Service and Remote Computing Service providers—thus prohibiting production from a provider.7
  9. Don’t ban use of social media outright. According to a 2011 study, nearly 80 percent of Fortune Global 100 companies leverage at least one form of social media to conduct business.8 Policies that effectively ban social media in the workplace would rob an organization of a valuable tool for marketing products and connecting with consumers.
  10. Craft proactive policies that encourage prudent posting. In order to leverage the benefits of social media while mitigating the risks it poses for litigation, companies and counsel should craft proactive policies that manage employee use of social media. Such a policy should be well disseminated, detailing a no-privacy stance while reserving the company’s right to monitor usage. Furthermore, policies should be flexible to properly mesh the evolving role of these sites with existing information policies, applicable regulations and corporate culture.

Social media is here to stay. Practitioners and organizations must proactively address the impact these sites have on litigation and information governance. While the items identified above are a great start to understanding the potential issues posed by social media in the workplace, there is no “one size fits all” approach to managing this data. If you are unsure how to approach these difficult issues, engage a trusted custodian to navigate the tricky waters of these virtual mediums.

1Fed. R. Civ. P. 34(a) advisory comm. notes.

2 Debra Logan, Social Media Governance: An Ounce of Prevention, Gartner Research (Dec. 17, 2010).

3 See, e.g., EEOC v. Simply Storage Mgmt, LLC., 270 F.R.D. 430 (S.D. Indiana 2010); Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011).

4 Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010).

5 See, e.g., N.Y.C. Bar Assoc. Comm. on Prof’l Ethics, Formal Opinion 2010-2 (Sept. 2010); Phila. Bar Assoc. Prof’l Guidance Comm., Ethics Opinion No. 2009-02 (March 2009).

6 18 U.S.C. §§ 2710 et seq.

7 Crispin v. Audigier,Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010).

8 2011 Fortune Global 100 Social Media Study, The Burson-Marsteller Blog (Feb. 15, 2011), http://www.burson-marsteller.com/Innovation_and_insights/blogs_and_podcasts/BM_Blog/Lists/Posts/Post.aspx?ID=254

Social Media in the Workplace – You Be the Judge

Social Media in the Workplace – You Be the Judge

It seems there is simply no avoiding it – social media is everywhere. From PCs to smartphones, for the young and the old, social media pervades every aspect of modern communication. As of June 2010, Americans spent 22.7% of their time online using social networking sites and blogs, representing a 43% increase from June 2009. The growing ubiquity of social media means that it is becoming increasingly prevalent in circumstances where it may not necessarily be welcome, such as the workplace.

In 2009, 53% of employee respondents to a Deloitte survey believed their social media activity was none of their employers’ business, and 61% reported that they would not alter their social media behavior even if their employers were monitoring it. Employers everywhere are grappling with the fuzzy ethical, legal and security issues presented by social media as they try to effectively manage this growing phenomenon. Permitting social media use under the guidelines of a well-written employee policy seems to be the best solution, but does it necessarily obviate the potential risks, and perhaps more importantly, is it worth it?

“Liking” Social Media in the Workplace?

Permitting the use of social media in the workplace undoubtedly has its benefits. As of 2009, 56% of business executives believed that using social networking sites helped their employees achieve a better work-life balance. This will become increasingly true as social media continues to make bold strides toward overtaking e-mail as the predominant form of communication. Evidence shows that a large portion of social media’s growth in online time has already come at the expense of e-mail, which took a whopping 28% decline from 2009 to 2010. According to a recent Gartner publication, social media is predicted to replace e-mail as the predominant form of communication by as early as 2014.

In light of social media’s growing importance, companies are striving to permit and control its use, which at least in theory seems plausible. Because social media is still relatively new, case law directly on point is scarce. However, given social media’s similarity to (and predicted succession of) e-mail, the principles applied in cases discussing e-mail in the employment context can likely be extrapolated to the treatment of social media in coming years. Well-written employee usage policies have gone a long way toward providing employers authorization to monitor e-mail activity as well as insulation from potential liability for abuse. Some policies have even been enough to extinguish claims of privilege – both attorney-client and marital – made over employer computer systems. In Alamar Ranch, LLC v. County of Boise, the court found that the company placed all employees on notice that e-mails would become the employer’s property, and determined that privilege was therefore waived with respect to the e-mails sent using the client’s work account. In a recent case out of the Southern District of New York, the court similarly found that marital privilege did not extend to communications made over the employer’s systems because the defendant was aware of the policy that expressly banned personal use and reserved the rights of routine e-mail monitoring and third party access to employee e-mails.

Extending these principles to social media, it seems probable that employers can effectively reserve the right to monitor social media activity and extinguish any expectation of privacy through well-written employee use policies – as all responsible employers wishing to permit social media use should. But while most employers concerned about social media liability tend to end the analysis here, perhaps it is where they should begin.

If employers want to permit social media use, then they must reserve the right to monitor it. However, does that right to monitor implicate any concomitant duties they may be less willing to take on?

Employer Liability for Employee Abuse?

One of the most distinguishing characteristics of social media is that users tend to be more forthcoming and candid than on traditional forms of media. This can, and has in fact already, led to many situations where employees inadvertently disclose confidential information or make inappropriate remarks. If an employer has reserved the right to monitor social media use, then to what extent are they responsible for inappropriate activity? Take for example, Amira-Jabbar v. Travel Services, where an employee argued that her employer was responsible for discriminatory comments made by coworkers on Facebook because it permitted access to the site during company time. The court ultimately determined the employer was not liable based on their prompt reaction to completely block access to the social networking site from its systems, but no indication was given that it could not have otherwise been responsible had it acted differently.

Discovery Obligations?

Another concern should be whether allowing employee access to social networking sites extends the employer’s duty to preserve and produce electronically stored information into this realm. One can only imagine the litany of ethical and legal issues such a situation could spawn. The scope of discovery is notoriously broad, permitting an opposing party to request any non-privileged, relevant information, or information reasonably calculated to lead to the discovery of admissible evidence. At face value at least, it appears reasonable that an opponent could seek discovery from social networking sites. However, relatively few companies currently archive social media. Could the failure to preserve this evidence lead to spoliation charges?

Perhaps more challenging, to what extent does the reservation to monitor social media activity grant an employer the right to access an employee’s personal account? As technology continues to evolve, “the line separating business from personal activities can easily blur” the Supreme Court of New Jersey aptly noted in the opening of its opinion in Stengart v. Loving Care Agency, Inc. The case addressed the question of whether an employee use policy granted an employer the right to access e-mail communications conducted via an employee’s personal account but over an employer-issued laptop. The court ultimately ruled that the employer was not entitled to privileged e-mail communications made between a former employee and her attorney through her personal Yahoo! account. However, the trial court originally found that the employee use policy effectively converted the communications into company property, and had it not been for the underlying privilege issues upon which the Appellate Division and Supreme Court relied on in reversing the decision, the original ruling may well have stood. This is especially true in light of the view held by some courts that sharing personal information is “the very nature and purpose of these social networking sites,” so any hope for “privacy is no longer grounded in reasonable expectations, but rather some theoretical protocol better known as wishful thinking.” Nonetheless, while some employees may be comfortable with their employer monitoring their social media activity, most would certainly be unwilling to concede ownership – and surprised to learn of the possibility.

You Be the Judge

While the issues presented here are only theoretical, they point up the uncertainty surrounding social media. As an employer, should you allow social media use? As an employee, should you exercise that permission? For both, is it even worth the risk?

Tell us what you think.

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: Griffin v. State

Case Law

Court Overturns Murder Conviction Finding MySpace Evidence Lacked Necessary Authentication

Griffin v. State, 2011 WL 1586683 (Md. Apr. 28, 2011). In this criminal case, the state’s highest court granted the convicted defendant’s petition for a writ of certiorari to review the trial judge’s decision (affirmed on appeal) to admit electronic evidence obtained from a MySpace profile. Noting that the required level of authentication required for social networking site evidence was a question of first impression, the court held that the potential for manipulation in this context required greater scrutiny of the foundational authentication requirements than that of traditional records. Because the authentication of key electronic evidence based upon a picture, birth date and residence location alone provided an inadequate foundation, the court found the trial court committed reversible error, overturned the conviction and remanded for a new trial. However, the court suggested that testimony from the purported creator, a search of her computer or information obtained directly from the social networking website could suffice to authenticate electronic evidence.

Commentary

As we have discussed rather thoroughly, social networking is becoming increasingly prevalent in civil litigation. However, we’ve first really observed the use of social media evidence in criminal actions, where it can be used to establish timelines and alibis, provide motive, etc. Per the case summary above, the trial judge’s decision to admit the evidence obtained from a MySpace profile that allegedly belonged to the defendant’s girlfriend was affirmed on appeal. One of the witnesses at trial claimed the girlfriend had threatened him prior to testifying at the first trial (which resulted in a mistrial) which is why his testimony changed. The State was permitted to introduce into evidence a redacted printout from the MySpace page for the purpose of corroborating the witness’ testimony. The page said: “JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” The state’s highest court overturned this ruling, finding the authentication provided for the MySpace page was insufficient to build an adequate foundation.

Griffin is certainly not the first case in the criminal realm to use social media evidence. In People v. Liceaga, 2009 WL 186229 (Mich. Ct. App. Jan. 27, 2009), the prosecution sought to admit photographs discovered on the defendant’s MySpace profile of himself displaying a gang sign and the gun allegedly used to shoot the victim as evidence of intent. Social media evidence has also been used for sentencing purposes as demonstrated in United States v. Villanueva, 2009 WL 455127 (11th Cir. Feb. 25, 2009). In that case, the court found that post-conviction photos discovered on the defendant’s MySpace page of the defending holding a semi-automatic gun with a loaded clip after the defendant had been convicted of a violent felony could be used as evidence to enhance sentencing.

Case Law: Bower v. Bower

Case Law

Court Finds SCA Prohibits Third Party Production of E-mails, Declines to Imply Consent

Bower v. Bower, 2011 WL 1326643 (D. Mass. Apr. 5, 2011). In this tort litigation relating to the alleged abductions of the plaintiff’s minor children, the plaintiff sought to compel Yahoo! and Google to comply with a third party document subpoena and to compel the defendant to consent to the production of e-mails. Agreeing with Yahoo! and Google that the Stored Communications Act (SCA) barred the requested production absent the defendant’s consent and finding no exception requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P. 34 document request, however, it found no support to order consent for failure to respond to a motion to compel consent. Further, the court disregarded the plaintiff’s argument that the defendant’s fugitive status should be sufficient to order consent and distinguished this case from those where an implied agreement has been found in light of affirmative participation in the judicial process. Based on this analysis, the court declined to find anything in the defendant’s actions (or status as a fugitive) from which to imply consent to disclose her information.

Commentary

The Stored Communications Act, 18 U.S.C. § 2701 et seq. (1986) prohibits Electronic Communication Service (ECS) and Remote Computing Service (RCS) providers from knowingly divulging the contents of a communication it stores unless the divulgence is to an intended recipient of such communication or express permission from the sender is obtained. Congress passed the Stored Communications Act (SCA) in 1986 as part of the Electronic Communications Privacy Act. “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Cripsin v. Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010) (citing Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008).

However, there have been instances where the SCA was circumvented through alternative means. In Flagg v. City of Detroit, the Eastern District of Michigan rejected the defendants’ reading of the SCA that the statute wholly precludes the production of electronic communications stored by a non-party service provider in civil litigation. Further, the court found that possession that possession for purposes of requiring production includes control over the information, which defendants maintained through its contractual relationship with the non-party service provider. However, the court was willing to modify the means of production – holding that the third party subpoena was unnecessary – and instead the court ordered the plaintiff to file a Fed.R.Civ.P. 34 production request.

Many believe the SCA is outdated and in need of a serious “facelift” to more accurately address the technological issues prominent in modern society; after all, the law was enacted in the mid-80’s when computers were just beginning their popularity. The outdated nature of this law is clearly seen in cases discussing the discoverability of social networking sites. In Crispin, the court found that with respect to private messages, social networking sites acted as both ECS and RCS providers, and the SCA prohibited disclosure of privately stored information. However, there was no clear answer with regard to content that is considered “public” on these sites. The court remanded the case to determine if social networking site providers are required to comply with subpoenas for publicly stored information such as wall postings, status updates, etc. (decision remains pending).

Are Video Game Consoles the Next Ediscovery Frontier?

Are Video Game Consoles the Next Ediscovery Frontier?

Over the past few years, social networking, cloud computing and advancements in smartphone technology have captured the attention of the ediscovery industry, law firms, corporations and government agencies alike. Technology advances rapidly and the next “new” source of ESI that will plague practitioners and organizations is not far behind.

One potential new source for data is a household item for many – a gaming system. Gaming systems have continued to push the bounds of technological advancements from the Atari to the modern day consoles that possess the ability to function beyond the traditional purposes of playing video games.

For instance, Microsoft® recently created the Xbox® Kinect™ technology which is “full body gaming” that allows the user to be the controller. Kinect allows users to play interactive games and records users’ activities in the form of pictures and videos that are then stored on the Xbox 360 console (special edition Xbox 360 has a 250 GB capacity). These pictures and videos can then be shared to other users who use Xbox LIVE, or can be posted to a user’s Facebook or Twitter accounts. In addition, there is a component of the system call “Video Kinect” which allows you to chat with friends and family with audio and visual capabilities through the television.

Over the past year or so, we’ve seen a rise in the impact of social networking accounts in the electronic discovery space. As an example, in the case, Romano v. Steelcase, Inc., the plaintiff sued the defendant company claiming loss of enjoyment of life as a result of injuries sustained. However, the defendant claimed a review of public portions of the plaintiff’s Facebook and MySpace pages demonstrated she was able to travel and maintain an active lifestyle. If social networking sites are becoming popular data sources in civil litigation, is it such a stretch then that the data recorded in a gaming system such as Xbox via the Kinect technology may be eventually impactful in the world of ediscovery?

Suppose in the Romano case the plaintiff had played the Dance Central game on Kinect, which involves full body movement and rigorous dance moves. Kinect records her activities in both photographs and video.  The plaintiff then decided to post a picture or video of her playing this game on her Facebook account which is discovered by the defendant. The defendant company’s counsel then files a motion with the court seeking access to the plaintiff’s Facebook account (which counsel did in Romano). Can counsel also seek the data stored in the gaming system if it is identified as being uploaded from the Kinect? What are the privacy implications involved in obtaining this information? Would this fall under the scope of permissible discovery?

A novel issue indeed which may seem ahead of its time. However, based on the rapid speed in which the electronic discovery space has evolved over the past year or two, it may not seem as farfetched tomorrow as it does today.

Case Law: Long v. Fairbank Farms, Inc.

Case Law

Third Party Defendant Ordered to Show Cause Why it Should Not Be Held in Contempt on Account of Alleged Misrepresentations

Long v. Fairbank Farms, Inc., 2011 WL 722767 (D. Me. Feb. 17, 2011). In this discovery dispute, the defendants sought to compel production, impose sanctions and require a third party defendant to show cause why it should not be held in contempt of court for accessing documents designated as for “Attorneys’ Eyes Only.” Despite finding discovery violations relating to two of five categories of documents allegedly withheld or destroyed, the court declined to impose sanctions or compel production as extraordinary relief had already been granted in a previous order permitting mirror-imaging. Regarding the next issue, attorneys for the third party defendant claimed they erroneously disseminated materials to their client marked “Attorneys’ Eyes Only,” pulled the documents back and confirmed the client had not since accessed them. However, the defendants produced evidence that a separate copy of the disclosure file was created and accessed using a USB storage drive on at least two occasions and the file had been transferred to an iPod or iPhone. In light of this evidence, the court ordered the third party defendant to show cause as to why it should not be held in contempt on account of the alleged misrepresentations.

Commentary

Rule 4.4(b) of the Model Rules of Professional Conduct reads:

A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender

Although the third party defendant who was ordered to show cause in this case was not a lawyer, legal professionals should remember that these Model Rules apply to ediscovery issues as well, even if they have not been formally adopted by the ABA. For example, in March 2010, the Supreme Court of New Jersey issued Stengart v. Loving Care Agency, Inc., which addressed whether the attorney-client privilege attaches to e-mails sent via a web-based e-mail account over company servers. However, the court also referred the case back to the trial court to determine what remedy was appropriate to discipline the defendant’s attorneys for their violation of Rule 4.4(b). The defendant’s attorneys discovered the arguably privileged messages and did not set them aside, notify the plaintiff or seek court permission for use. Instead, they retained a computer forensic expert to retrieve the privileged e-mails from the company system and read through them. At the current time, the trial court has yet to rule regarding what discipline it will impose based on the attorneys’ violation of Rule 4.4(b).

Ethical responsibilities have always been a gray area, which is certainly further complicated by the addition of new technologies that lawyers are faced with on a daily basis. We have discussed several times the impact social media sites are having in discovery and the impact of ethical obligations, and another hot trend – cloud computing – also raises interesting ethical issues, particularly around areas of competence and confidentiality of information. Lawyers must develop a stronger understanding of electronic discovery in general and this delicate interplay with ethical obligations to help them avoid negative consequences

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).

 
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