We’ve all been there before… how do we get a hold of and use to our advantage an opposing party’s social media activity, posts, and/or photographs? These days, it’s pretty standard for opposing parties in litigation to dig through social media. But, how do you obtain and use social medical effectively and ethically? For example, can you compel production of social media posts and photographs? What about a party’s Facebook logon information and password? Can you advise your client to “clean up” his or her Facebook page in preparation for litigation?
Social media allows users to share posts and/or photos in real time with the public or select followers. A user can make his or her account public, or make the account private such that only authorized persons can follow the user and view his or her posts and photographs. When it comes to the Federal Rules of Civil Procedure, the discovery of social media posts and photographs has its limits.
One of the key indices of discoverability under Federal Rules of Civil Procedure Rule 26 is relevance. The United States District Court for the Eastern District of Louisiana recently encountered the question of whether there is a meaningful different between social media posts and other types of discovery that we are accustomed to seeing. In the Court’s view, the answer was “no.” Farley v. Callais Sons, L.L.C., 14-2550, 2015 WL 4730729 (E.D. La. 8/10/15). In this case, the defendant filed a motion seeking an order compelling plaintiff to produce:
“all of his Facebook activity and records subsequent to the alleged incident on May 24, 2014, including, but not limited to … a signed copy of the Facebook Affidavit of Authorization requested in [defendant’s] Request for Production of Documents No. 25.”
The United States District Court for the Eastern District of Louisiana found the discovery requests “intrusive.” The court stated, the question created was whether the manner in which something is communicated to a select group of people or “friends” matters under Rule 26. The Court refused to cast a wide net over all of plaintiff’s Facebook activity. The Court found the following information from plaintiff’s Facebook account relevant and discoverable:
“(1) posting by [plaintiff] that refer or relate to the accident in question; (2) postings that refer or relate to emotional distress that [plaintiff] alleges he suffered as a result of the accident and any treatment that he received therefore; (3) posting or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleged here; (4) postings that refer or relate to physical injuries that [plaintiff] alleges he sustained as a result of the accident and any treatment he received therefore; (5) posting that refer or relate to other, unrelated physical injuries suffered or sustained by [plaintiff]; and (6) posting or photographs that reflect physical capabilities that are inconsistent with the injuries that [plaintiff] allegedly suffered as a result of the accident.”
The Court declined to compel discovery of plaintiff’s logon information and password, and the court would not compel the use of a blanket authorization by defendant to obtain plaintiff’s Facebook posts and photographs from a third party. Plaintiff was instructed to produce the information to his attorney, who would then decide what posts and photographs were relevant. Plaintiff’s counsel would thereafter produce the relevant posts and photographs to defendant with a declaration by plaintiff certifying his compliance with the court’s order.
Similarly, the United State District Court for the Eastern District of New York crafted a method of production of social media accounts. Giachetto v. Patchogue-Medford Union Free School District, 293 F.R.D. 112 (E.D. N.Y. 2013). Defendant filed a motion to compel plaintiff to provide authorizations for the release of all records from plaintiff’s social networking accounts, including but not limited to, her Facebook, Twitter, and Myspace accounts. The court refused to permit the defendant to use an authorization to obtain plaintiff’s social media posts from a third party. The court ordered that plaintiff would produce the social media posts and photographs to her attorney who would review the social media information for relevance and produce the relevant posts and photographs to defendant.
What if you want to avoid the discovery dispute and the issue of production before litigation even begins? Can an attorney instruct his or her client to “clean up” social media accounts prior to litigation? If your jurisdiction is Florida, the answer could be “yes.” On October 16, 2015, the Florida Bar Board of Governors approved the act of lawyers advising clients to remove photos, videos, and other information from the client’s social media accounts “directly related to the incident for which the lawyer is retained.” According to the opinion, which can be found at www.floridabar.org, “a personal injury lawyer may advise a client pre-litigation to change privacy settings on the client’s social media pages so that they are not publically accessibly.” The opinion adds the caveat that there must be no violations of the rules or substantive laws governing the preservation of evidence. Further, the personal injury lawyer’s guidance must be given pre-litigation.
In Virginia, the plaintiff and his lawyer were sanctioned where the lawyer’s advice was rendered after litigation began. In 2010, a Virginia jury awarded plaintiff $10.6 million in a wrongful death suit. The judgment was one of the largest wrongful death verdicts in Virginia history. Almost a year later, a Judge cut the jury verdict in half and penalized plaintiff and his attorney $722,000.00 in sanctions for an “extensive pattern of deceptive and obstructionist conduct.” According to the Judge, the spoliation began in 2009 when plaintiff’s counsel received a discovery request from defendants for the content of plaintiff’s Facebook account. Plaintiff’s counsel advised plaintiff to “clean up” his Facebook account, removing and destroying post and photographs of plaintiff drinking with other young adults that could potentially paint plaintiff in a negative light to the jury. It was this real time advice given during pending litigation that amounted to spoliation and ultimately led to the harsh sanctions handed down in Virginia. Lester v. Allied Concrete Company, et al., 736 S.E. 2d 699 (Va. 2013).
See entire ABA Newsletter here.
Ms. Preston defends clients against claims in the areas of premises liability and other types of tort and insurance matters in Deutsch Kerrigan's Civil Litigation department.
By: Cassie E. Preston
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