Category Archives: Case Law

December 27, 2011 · 5:14 PM

Pennsylvania Court’s Excellent “Whitepaper” on Social Media Discovery

Another Pennsylvania court recently ruled that information posted by a party on their personal Facebook page is discoverable and ordered the plaintiff to provide their user name and password to enable the production of the information. Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) features a detailed and instructive 14 page opinion from Court of Common Pleas Judge Richard J. Walsh that is a must read for anyone remotely interested in the topic of electronic discovery of social media. It is one of those well-written legal opinions that I liked to use as a framework for my motions on a given subject back in my litigation days.

The case arose out of a chain-reaction automobile vs. motorcycle accident from which the plaintiffs allegedly suffered serious and permanent physical and mental injuries. However, the Facebook public timeline page of one of the plaintiffs featured content that contradicted her claims of serious injury, including several photographs showing her enjoying life with her family and a status update about going to the gym. Based upon this information, Defendant moved to compel disclosure of Plaintiff’s Facebook username and password.

In granting the motion, Judge Walsh began his opinion noting that Facebook is a site that “helps you connect and share with the people in your life,” and that the site has more than 800 million active users, 50% of whom are active on the site daily. Although he acknowledged that Facebook has privacy settings, the Court emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. The Judge addressed and dispelled the following objections raised by the plaintiff:

1.     Relevancy and discoverability. The Court made it clear that just as other forms of electronic evidence are fair game if relevant, “it is clear that material on social networking sites is discoverable in a civil case.”

2.     Privacy.  The ruling determined that no social media privacy privilege exists: “No court has recognized such a privilege, and neither will we.” Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information. As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

3.     Stored Communications Act. The Court found that Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users. However, in this case the information was sought directly from Plaintiff, who is not an ISP.

4.     Overbroad and Harassing. Finally, the Court overruled Plaintiff’s objections that Defendant’s request was overbroad and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail. The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information, noting that “….this is one of the least burdensome ways to conduct discovery.”

Again, I recommend that you read this opinion in its entirety. We will continue to report on any significant cases in the social media legal realm.

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December 19, 2011 · 2:07 PM

The Affirmative Legal Duty to Address Social Media Evidence (Guest Attorney Blogger Edition)

John G. Browning

Today we are pleased to welcome a guest attorney blogger, John Browning who is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith LLP.  John is a frequent writer and speaker on issues related to social media and the law, and the author of the book The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West Publishing 2010):


John Patzakis’ December 12, 2011, post on attorneys having an affirmative duty to address social media evidence was spot on.  The commentary by the Maryland appellate court in Griffin v. Maryland that lawyers “as a matter of professional competence” should be investigating social media avenues in their cases represents just the latest in a number of opinions from around the country that demonstrate that the lawyer who ignores online resources does so at his own peril.

For example, in a 2010 Missouri Supreme Court case, Johnson v. McCullough, the court appeared to impose an affirmative duty on attorneys to make online investigation a key part of their jury selection.  In the underlying medical malpractice case, plaintiff’s counsel asked the panel during voir dire about any previous history of lawsuits, and one venire member did not respond.  After a defense verdict, the plaintiff’s counsel investigated that juror’s civil litigation history online (using Missouri’s PACER-like service, Case.net), only to discover that the juror had been a defendant in several debt collection matters and a personal injury case. Plaintiff’s counsel moved for a mistrial; after it was granted, the defense appealed.  The Missouri Supreme Court not only upheld the defense verdict, it also added some pretty strong language about attorneys’ responsibilities “[i]n light of advances in technology allowing greater access to information.”  Saying that “it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention earlier on in a case, the court held that “a party must (emphasis added) use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial.”

Courts in other states considering due diligence issues have recognized a “duty to Google,” if you will.  An Indiana appellate court in Munster v. Groce was incredulous that the plaintiff’s attorney had failed to Google the absent defendant Groce as a matter of due diligence, noting that the court itself had done so and immediately obtained search results that included a different address for Groce as well as an obituary for Groce’s mother listing numerous relatives who might have known his whereabouts.  And in Dubois ex rel. Butler, a Florida appellate court questioned the effectiveness of an attorney who had only checked directory assistance in order to get an address to serve a defendant, calling such a method in the age of the Internet the equivalent of “the horse and buggy and the eight track stereo.”  In a Louisiana case, Weatherly v. Optimum Asset Management, the appellate court upheld a trial judge’s rejection of a party’s due diligence claims where that judge had conducted his own Internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable.”

Beyond this clear trend toward requiring greater digital savvy on the part of attorneys, ethical rules also mandate that a professionally responsible lawyer should not ignore social media.  Rule 1.1 of the ABA Model Rules requires lawyers to be competent in representation of their clients, with Comment 6 advising that lawyers “should keep abreast of changes in the law and its practice.”  In an age in which Facebook has amassed 800 million users worldwide and studies show that 65% of adult Americans have at least one social networking profile, how competent or diligent is the lawyer who fails to take information from social networking sites into account?

John Browning may be contacted at jbrowning@lbbslaw.com.

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November 15, 2011 · 9:10 PM

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career

PenaltyIn what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.

The attorneys we speak with are telling us that social media evidence is relevant to nearly every case they handle and the savvy ones are using social media evidence to win their cases. And as we recently noted, since 2010 social media evidence played a key role in 675 different cases with published decisions reflecting such involvement and in presumably tens of thousands more cases not involving published decisions. Those numbers will only increase as social media networks grow even more popular.

However, I was struck by one recent conversation where an eDiscovery consultant had not yet included social media data source in their standard investigation checklist. To be fair, there has not been best practices technology available to enable scalable, mainstream social media eDiscovery until recently, which impacts standard processes.

But just as the Virginia state court judge saw no difference between Facebook postings and other “traditional” electronically stored information, neither should anyone in the legal and investigative fields, especially since the software needed to get the job done is now available.

UPDATE: Here is copy of the previous court ruling determining sanctions were in order. The final order set the amount.

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November 9, 2011 · 11:26 AM

674 Published Cases Involving Social Media Evidence

Many in the legal and eDiscovery field cite the very illuminating research from the Duke Law Journal published in the spring 2011, which, based upon their search of the case law, identified nearly 300 federal court decisions through the end of 2009 that awarded e-discovery sanctions. This survey and others like it reinforce the sentiment that eDiscovery is crucial to nearly all litigation and internal investigation matters.

The work of the Duke Law Journal inspired us to search an online legal database of state and federal court decisions across the United States to identify the number of cases where evidence from social networking sites played a significant role. The numbers were quite an eye opener and exceeded even our high expectations.  From January 1, 2010 through November 1, 2011, 674 state and federal court cases with written decisions available online have involved social media evidence in some capacity.

The search was limited to the top four social networking sites and the tally came out as follows: Myspace (326 cases), Facebook (262), Twitter (49) LinkedIn (37). The numbers excluded results where the social networking site was either named as a party to the case or where such cases were cited as precedent.

Some quick analysis behind the numbers:

  • Sampling review indicates that a significant percentage if not the majority of the Myspace cases generally involved criminal matters.
  • While fewer in number, the Twitter and LinkedIn cases tended to involve higher stakes litigation such as corporate trade secret theft, trade libel, copyright, class action employment matters, and trademark infringement. (See e.g. AGENCE FRANCE PRESSE v. MOREL and Getty Images, In re Application of Chevron Corporation, Blayde v. Harrah’s Entertainment, Inc.)
  • Sampling review also suggests that simple printouts and screen captures or direct testimony of representatives from social media providers in criminal cases were the means used to obtain this evidence.
  • In several dozen cases the court addressed, and in several instances sustained, objections to the evidentiary authentication of social media evidence. This reaffirms that the authentication of social media evidence without best practices technology is a major concern.

This survey of course does not reflect the presumably exponentially more cases involving social media evidence but without a written opinion available online that reflects that involvement. Even so, these numbers are an important data point establishing the ubiquitous nature of social media evidence.

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