Next Gen eDiscovery Law & Tech Blog

When an individual or small company plaintiff litigates against deep-pocketed defendants, the eDiscovery burden and risk largely falls on the latter. In employment litigation for instance, the employer must collect, review and produce up to hundreds of thousands of emails and electronic documents, with the plaintiff-employee usually not required to do much at all. The reason for this is obvious, as typically the employer possesses nearly all of the relevant documents. Many individual Plaintiffs achieve knock-out punches by establishing spoliation by a corporate adversary, with Zubulake vs. UBS Warburg being just one of many examples.

However, as Federal District Court Judge Craig B. Shaffer noted last month in his Federal Courts Law Review article, social media can turn the tables. In his co-authored piece “Looking Past the Debate: Proposed Revisions to the Federal Rules of Civil Procedure,” 7 Fed. Cts. L. Rev. 178 (September, 2013), Judge Shaffer, as part of a broader analysis of the proposed amendments to the FRCP that affect eDiscovery, calls out the important new strategic dynamics of social media evidence:

“In the past, particularly in an asymmetrical case (such as a single employee discrimination action brought under Title VII), plaintiff’s counsel might have paid only fleeting attention to his or her client’s preservation obligation since it was presumed that the defendant employer had possession, custody or control of all the relevant ESI. That confidence may be misplaced, however, with the advent of social media. As one court recently observed, there is ‘no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.’ A party is presumed to have control over their social networking accounts and relevant information on those sites is discoverable…Since the plaintiff controls when litigation commences, as well as the nature and scope of any claims asserted, a plaintiff’s attorney who does not take early and affirmative steps to preserve social media content risks spoliation sanctions.”

The most notable case involving social media spoliation so far this year is Gatto v. United Air Lines, Inc., 2013 WL 1285285, (D.N.J. Mar. 25, 2013). In Gatto, a JetBlue employee filed a personal injury suit, alleging United’s negligence caused a set of fueler stairs to crash into him. Gatto claimed that his injuries rendered him permanently disabled and that his disability limited his physical and social activities. United sought discovery of Gatto’s social media accounts, but Gatto refused to comply and deactivated his account. The court ultimately awarded United an adverse inference instruction based on Gatto’s failure to preserve his Facebook account and his intentional destruction of evidence. (See also, Cajamarca v. Regal Entertainment Group, 2012 WL 3782437, (E.D.N.Y. Aug. 31, 2012) (plaintiff’s counsel sanctioned for failing to advise client to preserve Facebook communications); Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408, (D.N.J. Aug. 3, 2011) (court finds party failed to preserve trademark-infringing Facebook profile and ordered remediation to original state to enable production).

And then there is of course Lester v. Allied Concrete Company, where the Plaintiff’s attorney blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. However, for every situation like the Lester case where relevant social media is brought to the forefront, there are presumably many others where important social media evidence is overlooked by attorneys and their service providers who do not include social media as part of their standard eDiscovery preservation checklist. As it is now established that social media is highly relevant as evidence, it is important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence from their clients, witnesses and opponents alike, and include its investigation in their standard processes and checklists. Many courts and legal experts have now weighed in to establish that professional standards of care require it.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here >

A. Tagvoryan

J. Briones

Today we are pleased to welcome Joshua Briones and Ana Tagvoryan for a special Q&A session about social media evidence discovery.  Joshua is a partner at DLA Piper and co-chair of the firm’s Social Media Practice Group.  Ana is also at DLA Piper and a member of the firm’s Social Media Practice Group.  Joshua and Ana advise clients regarding compliance with state and federal laws, which govern the use and disclosure of consumer information, and associated FTC regulations, privacy, the cloud, social networks, blogs, and other user-generated web content and on privacy and Internet-related class actions. Each is a co-author of the legal practice guide, Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association.  It is a highly practical book that we highly recommend, available for purchase online from the ABA here.

Q: Your book emphasizes that every litigator needs to understand and utilize social media evidence.  What do you say to the “old school” litigator who is more skeptical?

A:

Joshua:  Social media has become an evidentiary gold mine for impeaching witnesses and undermining a party’s litigation position. Eighty percent of Americans who are online now regularly use some form of social media. The proverbial “smoking gun” email has now given way to the smoking gun social media post. But there is a misperception that information on social media sites is private or limited to “friends” of the post. In reality, much of the information on social media sites is not private, and it can often be accessed or seen by complete strangers. For litigators, there is little question that litigation now regularly involves social media data as evidence, but it is essential that your litigation support staff or hired service provider has the requisite expertise and the right tools to capture and preserve this information.

Ana:  In addition, if it hasn’t happened already, it is only a matter of time before an attorney faces a malpractice claim for failing to review publicly available social media data.  In certain cases, social media data that is publicly available on a party or key witness could hurt or strengthen a party’s position and affect the outcome.  It is now a matter of basic due diligence for attorneys to review such data at the outset of a case and to be aware of it.

Q: You mentioned impeaching witnesses — many litigators assume that generally means younger folks and individual Plaintiffs, but you make some very compelling points about expert witnesses.

A:

Joshua:  Yes. Just about every expert witness these days has a blog, contributes to other blogs or regularly uses Twitter or Facebook.  Sometimes they do all three, as many experts these days seek to build an online brand as “knowledge leaders.” You can also find online videos of their presentations or lectures. It’s good for litigators to consider thoroughly researching these sources regarding opposing experts as well as for performing due diligence on their own expert witnesses. Additionally, lawyers may want to include in the expert’s engagement letter that they will not discuss the case on social media or blog sites until the case is completely over, including appeals, and, further, that anything discussed with the client or its counsel during the case that was not disclosed at trial is confidential and should never be disclosed.

Q: What are some of the finer points of social media evidence that corporate counsel should be aware of?

A:

Ana:  Obviously a company’s official social media account is going to be discoverable in a litigation matter, but in many cases an employee’s personal social media account may be discoverable as well, depending on company policies and procedures. For instance, if a company’s IT policy states that the business owns everything created, stored, sent or received on company equipment, then a court might find that the company owns – and therefore controls – any social media created by an employee at work or on a company computer, and which is germane to the issues in the litigation. Companies should therefore closely review their written IT policies which may have been written several years ago and thus did not take social media into account. All document retention policies and litigation hold procedures should also take social media data into account.

Q: For a party’s social media data that is behind privacy settings and available to “friends only” what is the current trend with courts treating this data as discoverable?

A:

Joshua:  While not allowing unfettered fishing expeditions into opponents’ social media accounts, courts are compelling production of non-public social media evidence where there is a showing of potential relevance. So while there is a relevance threshold as with all forms of discovery, courts are not recognizing any right to privacy when it comes to non-public social media content. In fact, judges in key decisions have noted that the “very nature and purpose” of social media sites is to share personal information with others in a very public form.

Ana:  Yes, all this is true even though the poster believed the posting would be confined to the “private” social media account or page. Stripped of the trappings of their newness, social media postings are no different from other types of communication — whether private or otherwise — that courts have allowed parties to obtain in discovery in civil litigation.  Even where access to content is limited to “friends” one court noted that the average Facebook user has 130 friends, who could share posted information with their “friends” and “friends” of “friends” and so on.   This why the court in Romano v. Steelcase noted that for social media content, “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

Q: Thank you Joshua and Ana. Is there anything else you would like to say in closing?

Ana:  Social media is not monolithic. It’s constantly changing and doesn’t exist in isolation from other information sources.  As such, a litigation-focused social media strategy should rely upon multiple sources; it should also cross-reference leads against disparate information sources (e.g., accounting records, email, sales presentations, and property records).

Joshua:  Social media is increasingly being used as a source of potentially useful evidence.  By effectively obtaining and strategically using social media in the litigation context, counsel can likely be better prepared — and better prepare their clients — to respond to social media data challenges.  It is in this regard that we are uniquely well suited to provide our clients with creative, forward-looking, and timely legal services.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.