Social Media and E-Discovery

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For a little introduction, in US civil litigation, following the filing of a lawsuit, each of the parties will virtually always engage in discovery.

In this context, discovery means discovering what information the other side has that will support its case or provide a defense against your claims.

In much civil litagation, there are three classes of discovery:

1. Document discovery – letters, notes taken during meetings, tape recordings, emails, contracts, promissory notes, etc., etc. that may be used as evidence at trial or lead to the discovery of evidence are produced for the other side to examine, usually in the form of copies. This type of discovery may also apply to things that may be placed into evidence – a defective device that caused harm to one of the parties, for example.
2. Interrogatories – Written questions that one side serves on the other for which written answers will be provided, attested to be true under oath.
3. Depositions – The parties (usually) and their lawyers (always) meet in somebody’s conference room Generally speaking, a court recorder or a technician who minds a digital will also be present to make a record of the deposition. The lawyer for one side asks quesitons which the opposing party or a fact witness who may be testifying for the opposing party or an expert (physician, engineer) who may be testifying on behalf of the other party. The witness is placed under oath and is required to answer truthfully to the best of her/his knowledge.

Once a legal fight begins or is imminent, all parties are supposed to take reasonable steps to preserve evidence or likely evidence that is likely to be needed at trial. If a party destroys evidence, the court may be able to treat such destruction as an indication that the evidence would be harmful to that party’s case, impose sanctions, etc.

The OP below talks about issues involved in gathering and preserving Electronically Stored Information (ESI) that is or may become evidence in litigation.

From Legaltech News:

Of the 7.5 billion people in the world, a staggering 3 billion are using social media. Suffice to say, this trendy method of communication stopped being a fad long ago, but the world of law is really just catching up. Woven into our global society, social media provides easy access to groups of like-minded people. These platforms give us the ability to share personal details with our extended circles and be informed in “real-time” of events traditionally reserved for the nightly news. From the lens of the law, the question then becomes, how does social media play a role in current and future litigation?

Based on our normal interaction with third-party platforms like Facebook, Instagram, Twitter and the like, most of us believe our online information to be private and secure. Right? Not really, not at all.

Third Party Doctrine

To be clear, the courts have stated that the Third Party Doctrine is dispositive. Meaning, once an individual provides a third party (like social media) with information, and voluntarily agrees to share that information with someone else (like the newsfeed or followers), that person loses any reasonable expectation of privacy.

Stated in the Yale Journal of Law and Technology, “…If the third-party doctrine governs social media behavior, then published content voluntarily shared among connections within a private social network loses all reasonable expectation of privacy, including any reasonable expectation that a user’s connections will not turn over their social data to investigative authorities.”

Now, how is this doctrine applied within the courtroom? The jury is out on that.

Court Opinions Vary

The court has been inconsistent in how to fall regarding social media discovery. The way the law was applied in these two contrasting cases best characterizes this discrepancy.

Romano vs. Steelcase Inc.

Backstory: Kathleen Romano fell at work. She claimed to be permanently injured due to the fall and brought a case again her employer, Steelcase.

The Role of Social Media: During the proceedings, Steelcase subpoenaed her Facebook and Myspace pages. The request wasn’t immediately granted. However, Steelcase pushed the envelope and moved to compel, stating that public information seen online indicated a lifestyle different than what the plaintiff was asserting in court (traveling, being very active, etc.). The court then decided that her social media presence “didn’t come with a reasonable expectation of privacy.” It granted the motion to compel and gave the defendant full access to the plaintiff’s current and historical Facebook and Myspace pages.

Tompkins v. Detroit Metropolitan

Backstory: Tompkins filed suit with Detroit Metro after slipping and falling at the airport. The plaintiff refused to voluntarily give the defendant unrestricted access to her Facebook information, including items that she has labeled as “private” or unavailable for public viewing.

The Role of Social Media: The defendant moved to compel (similarly to Steelcase) arguing that Tompkins’ publicly available photos of herself brought into question the severity of her injuries. The court made clear that social media was discoverable, even things that were designated as private, but that there were limits to that discoverability. They ruled that the defendant did not, “have a generalized right to rummage at will through information that plaintiff has limited from public view.”

The court ruled that the defendant must make a threshold showing that publicly available information on social networking sites undermines the plaintiff’s claims, and that searching through the entire account was considered overboard. As such, the defendant did not obtain the plaintiff’s private Facebook information.

Link to the rest at Legaltech News

At the end of this post is a link to a court order in a class action suit filed on behalf of a large number of cancer patients who claim they were harmed by taking an anti-cancer chemotherapy drug called Taxotere.

In this order, the trial court is laying out the kinds of electronic documents the plaintiff cancer patients must provide to the defendant drug company.

In this case, the obligation to produce such electronic documents includes the obligation for each plaintiff to diligently search of all the places that ESI may exist because emails, text messages, Facebook posts, blog posts, etc., etc., may contain information concerning the harm the plaintiffs are claiming they suffered during chemotherapy because of Taxotere.

If a chemotherapy patient was texting smiley faces to everyone during and after treatments, maybe he/she wasn’t really hurting all that much.

If PG were required to do the type of search into his electronic past as described in the court order, he would think about whether the court-mandated digging through the enormous mass of his digital detritus was worse than the cancer.

Here’s a link to the court order.

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