Social media and social networking websites have taken a solid foothold in American and global culture. The Pew Research Center estimates that
Social media and social networking websites have taken a solid foothold in American and global culture. The Pew Research Center estimates that 74% of all internet users utilize social media in one form or another—71% of that number accounts for Facebook alone. In addition to Facebook, there is Twitter (23%), LinkedIn (28%), Pintrest (28%), and Instagram (26%). These numbers only continues to rise with time. With the increasing and overwhelming ubiquity of these sites, all enterprising professionals should ask themselves: how can I use social media to better perform my job? For insurance company litigators and adjusters, one answer to that question undoubtedly lies in the world of discovery.
In each of the aforementioned social media sites, users disclose and publish a certain a degree of personal information, including things they like, personal photographs, written posts and communications, friends, and personal background information. Of course, the degree of what is disclosed and published varies significantly from person to person and site to site. With the right plaintiff, however, a social media webpage potentially can be a wealth of evidence, especially in the personal injury and insurance litigation context. As such a potentially deep source of information and high likelihood (74% chance, or better) a plaintiff is using at least one social media site, attorneys and adjusters can and should attempt social media discovery whenever possible.
Importantly though, as sources of information change and some information becomes more prevalent, the law and ethical rules take time catching up in application. Attorneys, thus, are often left to wonder, assume, and make their best guesses as to the most appropriate course of action, as is the case here. There simply is not a depth of Georgia law on how to go about discovery of social media; the higher courts have yet to substantively address the issue. With that in mind, below is a simple, three step guide to social media discovery, based off the trends in various state and federal courts across the country, complete with ethical considerations, supporting case law on the discoverability of social media, and phrasing suggestions for formal discovery requests.
I. The Informal Search
The first step in the discovery of social media, naturally, has to be an informal search, if no other reason, because it’s the easiest. An informal search could reveal all sought information without ever having to make a formal request and potentially face a discovery fight or alerting the opposing party to stop publishing information.
These informal searches are specifically not an invasion of privacy. Courts have held that an individual who publishes information to the general public through a social media account, and “thus opened it to the public eye,” can have no reasonable “expectation of privacy in the published material.” Moreno v. Hanford Sentinel, Inc., 172 Cal. App 4th 1125, 1130 (2009). In Moreno, the plaintiff published a post to her myspace page, the defendant discovered it through an informal search, and used it against her in the course of litigation. id. The court there found, as a matter of law, such information has no expectation of privacy. id.
Many times the person will have an open account, free for the general public to peruse, in which case there is no limitation to the attorney’s viewing all account activity. Other times, the person will be privacy settings in place. It’s important to remember, at those times, there are ethical implications when conducting informal searches of a party’s social media accounts. Primarily, attorneys must keep in mind that the ethical code prohibits communication with a represented party (in Georgia, Rule 4.2 of the Professional Rules of Conduct). State and local bars across the country have uniformly found that a “friend request” on a social media site constitutes a communication and therefore a violation of this rule. NY Rule of Professional Conduct 8.4; Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02; San Diego Cnty. Bar Ass’n Legal Ethics Comm. Op. 2011-2, 1 (2011).
Additionally, an attorney may not direct another, including and especially an insurance adjuster, to “friend request” the party, for the purpose of surreptitiously gaining access to the party’s social media account, under Rule 5.3 of the Georgia Professional Rules of Conduct. Interestingly, if a the party had become “friends” (i.e. given access to private social media account) with an agent of the attorney prior to litigation, at least one state has held, an attorney is not in violation of the code of ethics to explore the party’s account through that agent.U.S. v. Meregligo, 2012 WL 3264501 (S.D.N.Y Aug 10, 2012).
If an attorney can get the information needed from an informal web search, without violating a code of ethics, that will always be the most preferable method social media discovery, as the most efficient method. Informal searches many times do not produce results though. In that event, an attorney should consider a formal discovery request.
II. Formal Discovery Requests
There are both legal and strategic points to take into consideration before sending a formal social media discovery request to a plaintiff. Strategically, timing is crucial. If a formal request is sent at the inception of discovery, the party is on notice that information on his or her social media site may be detrimental to his or her case. Rather, the request should typically be sent toward the end of the discovery period. This timing does not discourage the opposing party from continuing to post damaging or incriminating information throughout the litigation process.
Legally, the request should be carefully drawn and not overbroad. Generally, social media content “is neither privileged nor protected by any right of privacy,” even when shielded by privacy settings. Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 at *2 (M.D. Fla. Feb. 21 2012); see also Nucci v. Target Corp, 2015 WL 71726 at *6 (Fla. App. Ct. 4th Cir. Jan. 7, 2015); and E.E.O.C. v. Simply Store Management, LLC, 270 F.R.D 430, 435 (S.D. Ind. 2010).
A request for discovery must still be tailored, however, so that it appears reasonably calculated to lead to the discovery of admissible evidence. Federal R. Civ. P. 26(b)(1). “Otherwise, [defendants] would be allowed to engage in the proverbial fishing expedition, in the hope there might be something of relevant in [plaintiffs’ social media] account…[a defendant] does not have a generalized right to rummage at will through information [a plaintiff] has limited from public view.” Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 at *2 (E.D. Mich. Jan. 18, 2012). Some courts have not been afraid to reject social media discovery requests as overbroad and not stated with reasonable particularity. See Mailhoit v. Home Depot U.S.A., Inc., 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012) (rejecting requests seeking “any profiles, postings, or messages from any social networking site that revealed [the plaintiff’s] mental state,” “third party communications to [the plaintiff] that placed [the plaintiff’s] own communications in context,” and “pictures posted on [the plaintiff’s] profile or tagged to her profile). See Appendix A for a list of suggested Interrogatories and Requests for Production of Documents, an abbreviated list from “SOCIAL MEDIA EVIDENCE – How To Find It And How To Use It,” ABA Litigation Section, 2013 Annual Meeting, and written by Gary L. Beaver, Steven Brower, Amy Longo, Cecil Lynn, and Mark Romance.
One way to insure and hedge against a court striking down a discovery request is an initial showing of the likely relevance of the information sought. For example, in Nucci, a premises liability personal injury case, plaintiff’s attorneys objected to the discovery of the plaintiff’s social media pictures, alleging the pictures were irrelevant, the “fishing expedition” objection. 2015 WL 71726 at *6. In response, the defendants produced surveillance which refuted the plaintiff’s alleged physical damages. id. After review of the surveillance, the court held “the relevance of the [social media] photographs is enhanced, because the post-accident surveillance videos of [the plaintiff] suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or the quality of her life since then.” Id.
In sum, a formal discovery request seeking an opposing party’s social media content, properly drawn, and supported with some showing of relevance will be extremely difficult for the opposing party to assert a protective order based on a right of privacy or lack of relevance. There have been times, however, where even a formal request cannot obtain the information sought—where a party, unaccustomed to the rules of discovery and/or acting in bad faith, destroys incriminating social media content.
III. Spoliation Sanctions
Lastly, if appropriately drawn discovery social media request does not yield the responsive, expected information, and if the requesting attorney has reason to believe the information has been destroyed, a motion seeking spoliation sanctions may be appropriate. Potential sanctions for spoliation include: dismissal of a claim or granting judgment in favor of a prejudiced party; suppression of evidence; an adverse inference, referred to as the spoliation inference; fines; and attorneys’ fees and costs. Gatto v. United Air Lines, Inc., 2013 WL 1285285 at *3 (D.N.J. Mar. 25, 2013)
In some cases, courts have been willing to apply significant sanctions on parties who destroy relevant social media content. In extreme cases, courts have even applied hefty monetary penalties. See Lester v. Allied Concrete Co., 83 Va. Cir. 308 (2011); and Allied Concrete Co. v. Lester, 285 Va. 295 (2013) (affirming the spoliation award). There, the plaintiff’s attorney, after receipt of a social media discovery request, directed the plaintiff to “clean up” his social media profiles to avoid “blow ups” of damaging pictures appearing in trial. Allied Concrete Co., 285 Va. at 302. The plaintiff subsequently deleted a host of photographs from his social media accounts. id. The courts found this conduct to be spoliation of relevant evidence and ordered the plaintiff and plaintiff’s counsel to pay the defendant’s fees and court costs associated with the social media discovery dispute, totaling more than $700,000. Lester, 83 Va. Cir. at 308. In other cases, courts have applied an adverse inference in jury instructions for the deactivation of a social media account. See Gatto 2013 WL 1285285.
At any rate, courts are in agreement that there is not a special rule which applies to social media and spoliation. If a party destroys evidence maliciously, spoliation sanctions will apply and should be pursued.
As technology changed in the last decade, our culture changed along with it. Communication and the means of sharing information have undergone dramatic evolution. People increasing are offering more and more personal information publicly. In a profession where personal facts about a certain individual can matter greatly, it is crucial that litigation attorneys, especially insurance defense litigation attorneys and adjusters in a personal injury context, always consider social media as a potential source of evidence, all the while their ethical code and obligations.
1. Please identify any Google+, MySpace, Facebook, Twitter [etc., etc.] or similar social networking accounts that you maintained or used during the entire time that you claim is relevant to this case, including a listing of the specific screen names for all such accounts, when they were first established, and if they have been terminated, the date of termination.
2. Please identify any LinkedIn, Monster.com, CareerBuilder.com [etc., etc.] or similar job listing or professional networking accounts you maintained or used during the entire time that you claim is relevant to this case, including a listing of when they were first established, and if the account has been terminated, the date of termination;
SAMPLE REQUEST FOR PRODUCTION OF DOCUMENTS:
1. Please provide copies of any Documents or electronically stored information you have created and/or stored using any third party online service provider, including, but not limited to, Google+, MySpace, Facebook, Twitter, Meetup.com, Orkut, Flickr, Gather.com, Tumblr, Windows Live Spaces, MSN Spaces, LinkedIn, Monster.com, CareerBuilder.com, blogs, or wikis, associated with any accounts identified in response to Interrogatory No. __.
2. Please provide an electronic copy of your complete Facebook history, including any and all profile information, postings, pictures, and data available pursuant to Facebook’s “Download Your Own Information” feature.
3. For each Facebook account maintained by you, please produce your account data for the period of ______ through present. You may download and print your Facebook data by logging onto your Facebook account, selecting “Account Settings” under the “Account” tab on your homepage, clicking on the “learn more” link beside the “Download Your Information” tab, and following the directions on the “Download Your Information” page. [from Held v. Ferrellgas, Inc., Case No. 2:10-cv-2393-EFM-GLR (D. Kan.)]