No One KnowsIn any plaintiff’s case, the claimant is Exhibit A.  A claimant must be credible because, where the number of lies a jury allows a defendant varies from case to case; the person suing for money gets none.  One reason I liked trying wrongful death cases was that the victim couldn’t testify.

A common way to prove a claimant isn’t credible is by proving the claimant tells different stories about matters made the basis of the suit.  Such “prior inconsistent statements” are excluded from the rule against using hearsay testimony, not just as an exception to the rule but by being defined as “not hearsay.”[1]  So, if a defendant can lay hands on such statements, the statements are coming into evidence and may really hurt.

Nowadays, many prior inconsistent statements are found on social networking sites like Facebook, LinkedIn and Twitter.  Facebook posts and tweets with tales of actions and attitudes at odds with claims in court are splendid fodder for impeachment.  Even a Facebook photo of a claimant with a smile may serve as ammo for impeachment when mental anguish damages are sought.

Social networking evidence is dynamite, and recent court decisions underscore the difficulty that judges have in deciding whether and how to permit it to be discovered.  Facebook pages are part public and part private.  Much like one’s home, friends can come in, but strangers need an invitation to get past the front door.  Also like a private home, the contents of social networking sites are not exempt from discovery; but neither should opposing counsel get to root around the site, hoping to spy something useful.

Still, some courts are granting unfettered access to social networking sites.  Worse, they are doing it in a manner that promises to blow up in the faces of those gaining access through the compelled turnover of log in credentials.  This is not a post about whether to grant such access—many articles and published decisions do a fine job addressing the pros and cons of same.  I write here of the form in which it should (and shouldn’t) be done when it must be done.

Twenty years ago, New Yorker cartoonist Peter Steiner created the single most reproduced cartoon from a magazine long renowned for its marvelous cartoons.  It featured a canine in front of a computer telling another pooch, “On the Internet, nobody knows you’re a dog.”   Or as Notre Dame footballer Manti Te’o might say it, “On the Internet, nobody knows you’re a fraud.”

In the world of social networking, you are anyone you say you are.  But, if you gained access using credentials (user ID and password), then, you are presumed to be the owner of those credentials, with all the powers and privileges such authentication confers. If opposing counsel logs on as an account owner, opposing counsel invests the genuine account owner with the power to claim that actions attributed to the owner are really counsel’s actions.  If you are opposing counsel and something gets deleted, how do you prove you didn’t delete it?  If something gets posted adverse to the account owner, how do you answer the claim that you put it there?  After all, you “borrowed” the owner’s identity when you logged in as the owner (albeit with the blessing of the court).

Think about that next time you demand an opponent’s log in credentials to social networking sites.

In cases where parties fight over access to an opponent’s social networking content, the parties are often so caught up with privacy and relevance issues they give short shrift to the mechanics of access.  They’re like dogs chasing a car; giving no thought to what to do when they catch it.

The approaches courts have taken to forms of production are all over the map:

  • Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 Pa. Dist. & Cnty. Dec. Lexis 187 (Pa. C.P. Northumberland May 19, 2011) (Court ordered Plaintiff to tender Facebook and MySpace usernames and passwords to Defendant.  Court denied request for in camera review as an “unfair burden to place on the Court”);
  • McMillen v. Hummingbird Speedway, Inc., No. 113-2010, 2010 Pa. Dist. & Cnty. Dec. Lexis 270 (Pa. C.P. Jefferson September 9, 2010) (Court ordered Plaintiff to surrender Facebook and MySpace usernames and passwords to defense counsel and directed that access be “read only,” without specifying how such limited access could be accomplished beyond reliance on counsels’ rectitude);
  • Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) (Court required account owner to give access).
  • Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011) (Court looked at social networking content in camera and determined that responding party should have made production without necessity of same);
  • Barnes v. CUS Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. June 3, 2010)(Court volunteered to undertake in camera review by “friending” account holder);
  • Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012) (Court ordered upload of all information from Facebook and MySpace accounts onto an external storage device);
  • Giacchetto v. Patchogue-Medford Union Free School Dist., No. CV 11-6323(ADS)(AKT), 2013 WL 2897054 (E.D.N.Y. May 6, 2013) (Court defined scope and ordered Plaintiff’s counsel, “not Plaintiff,” to conduct review and make production);
  • Mailhoit v. Home Depot U.S.A., Inc., ___F.R.D.___, 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012) (Court defined scope of discoverable content but left mechanism of production to producing party);
  • Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012) (Court defined scope of discoverable content but left mechanism of production to producing party);

If you’re thinking the best way to gain access to social networking content is by serving a subpoena on the service provider, think again. The Stored Communications Act (SCA) prohibits internet operators from divulging the contents carried or maintained on the service. 18 U.S.C. § 2702(a)(1) et seq.  To go this route, you will need either an express, written authorization from the account holder or a court order.  Even then, what form of production do you expect to receive?

Ideally, social networking sites would allow users to issue and revoke credentials affording read-only access to site content, or to selected content (like wall posts but not messaging); however, none of the major social networking services do so.  Social networking providers not only don’t facilitate direct access to user content, some affirmatively prohibit same.  As a term of service, Facebook requires users agree that they “will not solicit login information or access an account belonging to someone else.” [2]  Facebook’s terms of service further state, “[y]ou will not share your password [or] let anyone else access your account….”

Accordingly, each court that orders a Facebook user to surrender credentials, also orders the user to violate Facebook’s terms of service–a trivial concern perhaps, but one that may give some courts pause.

Apart from gaining access via the service provider or using an opponent’s credentials, I made a non-exclusive list[3] of six approaches courts might adopt in dealing with the production of social networking content:

  1. Define scope and charge producing party and/or counsel to examine content and make production.
  2. Court conducts in camera examination.[4]
  3. Neutral third party expert or special master examines content and makes production within scope.[5]
  4. Afford supervised access to requesting party (in-person or via screen share), and produce designated content within scope.[6]
  5. Collect content to external device using agreed-upon tool or method, and produce authenticated copy.[7]
  6. Requesting party temporarily “Friends” the other side.[8]

Competent Counsel Continues as Conduit

Like almost any other non-privileged ESI, relevant social networking content is fair game for discovery.  By way of analogy, if a photograph’s relevant and properly sought in discovery, you have to produce a copy whether the photo’s posted on Facebook or comes from a locket around your neck.

The primary responsibility for identifying, preserving and producing relevant social media content lies with producing parties and their counsel.  It’s their duty to be diligent and competent with respect to the evidence within their care, custody and control.  

Absent misconduct, incompetence or agreement between the parties, I see little justification to hand over credentials to social media accounts to opponents.  The exception for misconduct and incompetence merely acknowledges that the right to keep opponents out of the process presupposes the capability and willingness to fulfill one’s discovery duties.  If producing parties lack the integrity or the capacity to meet those duties, they forfeit their right to be the conduit for discovery, and courts must intervene to protect the evidence and the process.

In order for this approach to work, there must be some bare level of transparency that allows for confidence in an opponent’s ability to act diligently and competently.  In stark contrast to paper records, it is not prudent to assume that opponents know how to identify, collect and preserve social networking content.  Thus, it’s only fair that a requesting party be permitted to inquire about an opponent’s plan to preserve and search social networking content and to obtain sufficient answers.[9]  This isn’t discovery about discovery so much as it is discovery about digital fluency at a time when literacy cannot be assumed.

FOOTNOTES


[1] Federal Rules of Evidence, Rule 801(d)(2).

[2] https://www.facebook.com/legal/terms (as revised December 11, 2012).

[3] If you have other ideas, please add a comment to this post.

[4] Few courts have the time or inclination to comb through a litigant’s social networking sites by in camera review, and fewer attorneys for users will want courts forming impressions about a litigant from such a free-wheeling source.  The potential for prejudice is too great.

[5] I’ve been appointed by courts on many occasions for the purpose of collecting and inspecting private online content.  It works, but it’s not always cost-effective.  Plus, apart from the fact that neutrals have no dog in the fight and thus lack incentive to under- or overproduce, we are generally no better situated to judge relevance than counsel in the case.

[6] Affording supervised access, either in person or via screen sharing, has much to commend it.  It obviates the need to share credentials with an opponent while still giving the opponent (relatively) unfettered access.  Of course, someone must log in as the user, and requesting parties may find working through opposing counsel to be invasive or tedious, especially for sites with a lot of content.

[7] Collecting content to local storage is also effective; however, too few firms possess the tools or skill to facilitate such collection in ways that prove reasonably complete, utile and electronically searchable.  Probably the best known purpose-built product facilitating collection from Facebook, LinkedIn and Twitter is X1 Social Discovery, ($945 annual license/ $2,000 perpetual license).

[8] Friending another user in Facebook will not afford access to all of the same content available to the user; however, it might be sufficient in some cases where, e.g., access to messaging is not needed..

[9] Such inquiries are uncomfortable for the resentful majority who lack competence, but the alternative is worse than mere embarrassment; it’s the loss of the chance to save the evidence and the loss of a chance to forestall sanctions.

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