Have you ever received a call or letter from opposing counsel, "kindly" advising you that they discovered an incriminating photo on your personal injury client's Facebook page that shows your client performing ski jumps at a time when they were allegedly injured and unable to work? Not a fun conversation, at least from your standpoint. Opposing counsel can hardly contain their glee as they suggest that you agree to settle for waiver of costs, while you remain verbally nonchalant and hope that counsel did not just hear you smack your head on your desk.
If that has happened to you, hopefully you learned your lesson and now advise your clients at the outset of any case that opposing counsel is not above trolling through your client's social medial accounts to find anything to use against them. Obviously, their claims need to be truthful and their conduct during the course of their case should reflect the same, but for the love of all that is holy, please check the privacy settings on their accounts and make sure that they are not public.
However, just making social media accounts private is not sufficient. More and more courts are allowing discovery into social media accounts, regardless of whether the accounts are public or private.
Richards v. Hertz Corp. (N.Y. Court of Appeals)
In the recent case, Richards v. Hertz. Corp., -- N.Y.S.2d ----, 2012 WL 5503841 (N.Y.A.D. 2 Dept.), 2012 N.Y. Slip Op. 07650 (Nov. 14, 2012), the appellate court sided with defendants and ordered discovery of the contents of the Facebook page of one of the plaintiffs. In that case, defendants sought access to all status reports, e-mails, photographs, and videos posted on the plaintiffs' Facebook profiles since the date of the accident, after reviewing one of the plaintiff's Facebook profiles and discovering a photo of her on skis in the snow. This picture was not protected by her privacy settings, and defendants thereafter made the request for discovery of content posted since the date of the accident. The trial court limited the request and ordered one of the plaintiffs to produce copies of every photo on Facebook evidencing her participating in a sporting activity.
The appellate court reversed, stating that defendants demonstrated that because one of the plaintiff's Facebook profile contained a photograph that was probative of the issue of the extent of her alleged injuries, "it is reasonable to believe that other portions of her Facebook profile may contain further evidence relevant to that issue." In so doing, the court found that, as to that plaintiff, the defendant had made a showing that "at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim."
The appellate court did not think it was appropriate to limit discovery to only photos of that plaintiff engaging in a sporting activity, because plaintiff's profile may contain "other items such as status reports, e-mails, and videos that are relevant to the extent of her alleged injuries."
Importantly, the appellate court recognized that there was a legitimate concern that plaintiff's profile contained matters of a private nature, so it ordered the lower court to conduct an in camera inspection of the items produced and determine which materials were relevant to plaintiff's alleged injuries.
As to the other plaintiff, however, defendants failed to make a showing that the disclosure of the requested Facebook profile materials would result in the disclosure of relevant evidence or was reasonably calculated to lead to the discovery of information bearing on her claim. Therefore, the court ordered that the requested items from that plaintiff's Facebook profile were not discoverable.
EEOC v. Original Honeybaked Ham Co. of Georgia, Inc. (U.S. District Court of Colorado)
This issue also recently arose in the context of an employment case involving allegations of sexual harassment, hostile environment and retaliation, where defendant sought, among other things, discovery of class members' social media, text messages, and email.
In EEOC v. Original Honeybaked Ham Co. of Georgia, Inc. No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012), the district court began its analysis by clarifying that its job was to ensure production of documents that may lead to the discovery of admissible evidence -- but the court was not determining what evidence would in fact, be admissible at trial.
The court advised that it viewed the requested content as though each class member had a file folder titled "Everything About Me," which they have voluntarily shared with others. "If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation."
The court found that defendant had made an adequate showing that the documents it sought contained discoverable information. There, defendant had shown that one of the plaintiffs posted on her Facebook account statements that discussed her financial expectations in this lawsuit; a photograph of herself wearing a shirt with the word âCUNT" in large letters written across the front (a term that she alleged was used pejoratively against her, also alleging that such use offended her); musings about her emotional state in having lost a beloved pet as well as having suffered a broken relationship; other writings addressing her positive outlook on how her life was post-termination; her self-described sexual aggressiveness; statements about actions she engaged in as a supervisor with Defendant (including terminating a woman who is a class member in this case); sexually amorous communications with other class members; her post-termination employment and income opportunities and financial condition; and other information.
The court was persuaded that because defendant had already obtained one of the plaintiff's Facebook pages and those pages contained significant relevant information, and that other plaintiffs had posted on that Facebook account, the class members' social media content should be produced. With regard to the text messages, the court found that defendant's definition of document was sufficient to cover text messages.
Like the Richards case, the court ordered that the content be reviewed in camera. However, this court went one step further and ordered a forensic expert to serve as special master to review the content.
The judge therefore ordered all the class members to produce directly and confidentially to the special master:
1. Any cell phone used to send or receive text messages from January 1, 2009 to the present;
2. All necessary information to access any social media websites used by such person for the time period January 1, 2009 to present;
3. All necessary information to access any email account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures, during the time period January 1, 2009 to present.
The Court went on to set forth the following procedure: the Court would receive in hard copy all information yielded by this process, review the information in camera and require the production to Defendant of only that information which the Court determines is legally relevant under the applicable rules. The Court will then deliver relevant material to the EEOC, which shall conduct a privilege review, designate the material as appropriate under the Protective Order in this case, then deliver the non-privileged material to defense counsel along with a privilege log containing any withheld information. All irrelevant material will also be returned to the EEOC, who would also have the opportunity to make a record of objections as to items that the Court found relevant if the EEOC disagreed with any of the Court's determinations.
Interestingly, Judge Hegarty ordered that the costs be split between the plaintiffs and defendants but advised that if the effort produced little or no information that he would, upon motion, reconsider this allocation.
The Order was subsequently amended to remove the special master, and the Court appointed an employee at the EEOC to review the requested documents.
On November 21, 2012, the EEOC filed an objection to the Order, arguing that the Order did not take into account privacy concerns raised by the EEOC, and did not adequately clarify whether EEOC's objections would be ruled on prior to disclosure of the documents. It remains to be seen how this issue will be resolved.
Attorneys should remember that despite the ever changing landscape of technology, the standard for discoverability of documents remains the same: whether the request is reasonably calculated to lead to the discovery of information bearing on the claim at issue.
As seen in both of the above cases, courts will not allow defendants to simply engage in a fishing expedition; they must meet this initial showing.
Secondly, it is very important to remind clients, at the beginning of their case, that all of the communication and postings that they make on Facebook or other social media, texts or email, may be subject to discovery, so they should be thoughtful about what, if anything, they post or write.
Finally, adequate measures should be made to ensure that court orders of this type of discovery are narrowly tailored, and address the privacy concerns of those parties involved. As one commentator points out, a major concern with the ruling in EEOC v. Original Honeybaked Ham Co., is that the judge asked for all necessary information to access any social media website, email account, web blog, or related electronically accessed internet or remote location, i.e. passwords, because this would allow for access to an entire account and likely irrelevant and private information, and also because it could result in unknowing changes to the account. This commentator suggests using an export feature or manually exporting the content so as to avoid turning over passwords.
These discovery requests will likely become commonplace in a variety of types of cases, and it is incumbent upon attorneys to be appropriately prepared.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.