Social-networking sites and civil discovery

A view of a client’s vulnerability and what to expect in discovery

2015 October

Technology, in the form of social-media platforms like Facebook, Twitter, Instagram, Myspace, or blogging in general, has created a ubiquitous presence for all manner of verbal and visual statements that lawyers assess as representations or admissions. In bygone days, these statements, recordings and images would not have been known or heard of, much less preserved for “all time,” dated and in a digital format, accessible from anywhere there is an Internet connection. But, here we are.

The “universe” in litigation expands as rapidly as there are sources of information about the events or occurrences in question – or things said or done about the occurrences in question. This information, preserved, can be used later to support or undermine claims or defenses. A simple example suffices. Look what cell phone cameras have wrought. Less than 20-years ago, photos or a movie of the scene of an accident or incident by someone other than the police, were looked upon with surprise and suspicion. Now, we practically expect multiple camera angles of a single calamitous incident and are disappointed if no one was able to get their cell phone camera going to cover it – if only for the immediate aftermath.

The amount of information that is preserved in one form or another, then accessible and displayed to others, is not just mind boggling but incredibly useful for attorneys and their clients. It also carries profound risk for disingenuous or careless parties.

Our tasking as lawyers is to spot issues and learn the facts. That includes learning how much variability there is between (subjective) versions of the facts from any one source. Some variations are expected from live witnesses, especially when estimates are in play or time intervals in general, but when lawyers read statements made by a witness about an event, the greater the material differences in the descriptions between versions, the more likely they will not be deemed reliable or believable. The more important the witness is to the cause, the more substantial the effects of the variations on the case.

Attorneys search the Internet and social portals to see what “relevant” statements or images have been posted even though they know full well these comments are not intended as “testimonial.” So much the better, they will reason, because Internet commentary about persons or the events they are interested in, is generally “fresh,” or extemporaneous, largely untainted by legal agendas – with some obvious exceptions. Lawyers look for variability in what they read, inconsistencies; especially from parties’ statements (or images of actions). But anyone commenting on the incident or event is important, as is picking up on limits on perception or bias issues. The lawyers’ lot is to find, assess, minimize or maximize those features for each witness in their cases.

If litigation can be likened to a chess match, the introduction and onslaught of social-media portals and other avenues of verbal and visual expression on the Internet have transformed a difficult game to master into the three-dimensional version Commander Spock played aboard the USS Enterprise. You may rest assured that, “Fascinating,” is not the first “F-word” that will come to mind if counsel finds out (at trial) that he or she overlooked this increasingly large segment and routine of modern life.

Because discovery now involves email and social-networking communications, lawyers must get up to speed quickly and assess all of the client’s emails and postings that can be amassed – good, bad or indifferent – about the occurrences in question and harms stemming from them. See, e.g., Chevron Corp. v. Donziger (N.D. Cal. 2013, appeal dismissed 2014) 2013 WL 4536808, at *3, [RICO case permitting discovery of multiple email accounts and articulating specific reasons to permit or quash a discovery subpoenas on ISP]; Mailhoit v. Home Depot U.S.A., Inc. (C.D. Cal. 2012) 285 F.R.D. 566 [wrongful termination case where employer sought employee’s social-media posts and photos]; Giacchetto v. Patchogue-Medford Union Free School Dist. (E.D.N.Y. 2013) 293 F.R.D. 112, 115-16 (same). Cf., Muniz v. United Parcel Service, Inc. (N.D. Cal., Jan. 28, 2011, C-09-01987-CW DMR) 2011 WL 311374, at *7-9 [subpoenas quashed on professional association’s listserv to obtain member attorneys’ comments on the case re attorneys’ fees petition too attenuated].

Once assessed or even as that process commences, the lawyer must actively move to control the flow of information about the case, and that means setting limits and boundaries. The client should receive a cogent explanation why this is important. He may not be aware that different versions of a story – if only for the choice of terms – to different people – if only for their level of interest or sophistication – brings risk that a trier of fact believes the “true facts” of a play-by-play recounting are being avoided or spun. If legitimacy cannot be established because of variations in plaintiff’s (or someone else’s version), the harm in the erosion or destruction of an otherwise righteous claim is clear.

Social media and blogging

Social media and blogging have transformed the world to give anyone a show, soapbox or say about anything under the sun. Money, education and position are largely irrelevant in this virtual world, and the least assuming client could be all over any number of Internet sites doing any number of activities. That means, the client “talking smack” about his case on Facebook could turn out to be the least of your concerns. A 30-second YouTube post might turn out to be your largest. And while the merits of any offering on the Internet could probably be debated, one thing should be made very clear to the clients the moment you are retained or consulted: The Internet has revolutionized the concept of an investigation and exposed our (human) clients to the “biggest and baddest” fishing expeditions that anyone could imagine. Suddenly, the world seems much smaller and far less private. But this is a consequence of more people enjoying the notoriety of their exploits and caring less about their privacy. Perhaps it is because they do not “see” their audience. They see a screen on a PC, tablet or smartphone. Maybe it is evolving narcissism, but whatever the cause, it must be reckoned with in handling claims or litigation.

The first thing we do with the (new) client is get a listing of all social-networking accounts and contacts, and get an idea about the frequency of its use, particularly after the incident in question. It is not enough to get emails from your client about the events in question. Get the blogs or other posts on social-networking sites, and insist that the client obtain all of the messages and all images that bear on the incident or parties involved. Assure the client that thoroughness and candor here could prevent an estoppel at trial, or worse, the wholesale invasion of his user ID’s, passwords and computer files by a forensic examiner with court ordered access to a hard drive – and whatever else may be found lurking in ostensibly “deleted” files. (See, Ingrid & Isabel, LLC v. Baby Be Mine, LLC (N.D. Cal. 2014) 2014 WL 1338480, at *9-10.)

If the client has posted writings or pictures the attorney concludes are harmful to the cause, they should be removed to the extent it is legal and feasible, but preserved.

(As an aside, litigation is not a search for the truth by Diogenes. There is a fair amount of posturing and positioning for advantage in civil cases that is entirely consistent with common notions of justice. It follows there is nothing wrong, per se, with taking down a picture or post that is inconsistent with a client’s claim. However, it is quite another matter, and wrong and unethical, to destroy that “evidence,” in the hopes it will not be discovered. Evidence should not be destroyed, but categorized, identified and withheld but made available for in camera inspection when an opponent’s industry overcomes procedural blocks. That is the most aggressive methodology that is consistent with a lawyer’s license and fealty to the rule of law. Furthermore, by virtue taking down a post so that its content is removed, it does not follow, (1) it was done (strictly) on the advice of counsel, or (2) that if asked under oath of its existence that it would be denied. To the contrary, once discussed with the client, they will come to their own conclusion the post should be removed and if asked, it would be identified. However, the likelihood of a question about the “removed post” may be entirely worth the gamble it will remain unnoticed and/or evade inquiry. In the meantime, the client should develop a thoughtful explanation for what occurred if inquiry is made, and the attorney should assist in its phrasing in the event it must be provided.)

The operative theme to be expressed and impressed upon the client is that the fewer things said or posted, to as few as possible outside the nucleus of those who may assert the attorney-client or work product privilege, the better the probability of a positive outcome on the issue or case.

Clients should be instructed in no uncertain terms that anything they write to anyone about the occurrences or parties and issues, apart from those who may use the shield of the attorney-client or work product privileges, is vulnerable to discovery and could undermine their testimony or claims in the case. For that reason, client should resist the temptation of discussing their incident or its effects with anyone other than close family members or friends, and nothing of the claim itself should be discussed outside the nucleus of the persons who may assert the attorney-client privilege. There is a difference and most clients are capable of grasping it.

The inescapable reality is that most of our educated clients use social-media platforms to keep family members and close friends informed about how they are – especially after a big accident – and the good and bad things that happen in life. Blanket instructions generally seem bombastic and do not work well in practice. Explaining how to communicate with family members and friends about the incident is an easy and more effective alternative. Thus, if a client(s) avoids talking about (1) how the incident occurred, (2) the defendant, (3) the kinds or (4) amounts of damages that are sought, 99% of the landmines that could be tread upon are neutralized.

The clients and family members will generally fall in line with the attorney’s warnings and instructions about no further communications about the case outside a particular nucleus. Witnesses and friends who use social-networking accounts pose different issues, not least of which is that you represent a party, and not them. A party’s lawyer should not be seen as steering or helicoptering a percipient witness or there is sure to be a loss of valuable credibility.

Discovery from social media

In order to gain some semblance of control over the percipient witnesses in your client’s camp (or not), the attorney may write a letter and let each know of the significance their testimony has in the outcome of the case. It is not overreaching to add a gentle admonition – especially if your investigator has already obtained their statement – that until they testify pursuant to deposition subpoena, it may serve their interests not to discuss the matters they are aware of publicly (i.e., on the Internet) or with anyone other than counsel. Most people, once on notice, will find that intuitive and not intimidating. The point is to put them on alert, which may chasten some from “going off,” or spinning a version of the events for any number of reasons, from attempted humor to a fit of pique.

Although not one California appellate court decision has discussed, much less ruled on a civil discovery dispute involving social-media accounts, that is likely to change in the future as lawyers become more adept at using social-media accounts. A few federal district courts have already entered the fray and they offer guidance about how to deal with these issues.

First, it is safe to conclude state trial courts will see the legality of this kind of discovery in a similar manner to its federal district court counterparts. This is not an apples to oranges comparison, even with the unique rights residents of California enjoy. Rights of a party in litigation generally yield to reasonable inquiry about case-specific issues. The scope of discovery under Federal Rule 26(b) is broad: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party involved in the pending action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (Fed. R. CIV. P. 26(b).) That is similar to the breadth of “subject matter relevance” under California law, so any comparison is apt. (Cf., Code of Civil Procedure §2017.010.

Mailhoit v. Home Depot U.S.A., Inc.

The best that can be said about social- media discovery is that 95% of its success depends on drafting a lucid category or question. (See e.g., Mailhoit v. Home Depot U.S.A., Inc. (C.D. Cal. 2012) 285 F.R.D. 566.) One may encounter a lawyer who is unable to articulate a cogent category, but those are temporary barriers built by self-inflicted errors. The fact of the matter is, a well written request will yield social-networking site information about any issue in the case.

In Mailhoit, a wrongful-termination case, four categories of requests concerning social-networking sites were in issue on a defense motion to compel the production of plaintiff’s documents. Given the similarities in the manner discovery disputes are adjudicated between federal and state courts, one can reasonably expect the same consideration in state court.

Category 1 seeks any ‘profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)’ from any social-networking site from October 2005 through the present ‘that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.’

The Mailhoit court noted plaintiff put her emotional state in-issue by her tort claims, and that some of her communications on social-networking sites could support or undermine those claims. However, the category under review was considered “extremely” broad, if not unintelligible, and failed to put “a person of ordinary intelligence on notice of what specific documents or information” Home Depot was seeking from its former employee. (Mailhoit, supra, 285 F.R.D. at 571.)

The second category in dispute requested communications that placed the plaintiff’s responses from the first category in context, and it was defective for the same reasons regarding Category 1. Skipping “Category 3,” either for judicial drama or order in thought, the Court then dispatched “Category 4.” Category 4, requested, “[A]ny pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile.” (Mailhoit, supra, 285 F.R.D. at 571-572.) That also was not permitted by the court because no showing was made by the propounding party that “every picture” taken over the seven year interval was subject matter relevant, or would lead to admissible evidence (in a wrongful termination case).

Turning to Category 3, the court related,

In contrast, Category 3, which requests all [Social-Networking Sites] communications ‘between Plaintiff and any current or former Home Depot employees, or which in any way refer ... to her employment at Home Depot or this lawsuit,’ adequately places Plaintiff on notice of the materials to be produced and is reasonably calculated to lead to the discovery of admissible evidence. Plaintiff notes that she has already responded to requests for communications between Plaintiff and sixteen different current or former Home Depot employees, which ‘would presumably include communications via social media.’ … Plaintiff’s responses to those requests indicate that a search for the communications described in Category 3 is both technically feasible and not overly burdensome. … Plaintiff did not provide argument or evidence to the contrary in opposition to the current motion. Consequently, the Court GRANTS Defendant’s Motion with respect to Category 3.

(Mailhoit, supra, 25 F.R.D. @ 572-573)

Lessons from Mailhoit and Giacchetto

The lessons from Mailhoit are quite simple: Social-networking site investigation and discovery will continue to be honored and honed. Judges are naturally receptive to requests that involve communications or images about subject-matter-relevant topics. Overbroad or ambiguous requests aside, privacy does not appear to be a consideration presumably because these are Internet (broadcast) statements made without a reasonable expectation of privacy. Moreover, they clearly involve recipients who are not covered by the attorney-client or work product privileges.

Mailhoit teaches that clients should be counseled in the strongest possible terms to limit their discussions about their case or claims with persons who are able to assert the attorney-client privilege. That means, among other things, the client not taking bait if it’s offered, and just leaving the matter alone – if the client is challenged by anyone about anything case related.

If a response must be generated about a topic, the client should be encouraged to use the lawyer as a buffer. The discipline this requires should not be underestimated. Passions may be aroused or inflamed about something connected to the case, and the client must stay the course by resisting impulses to “go off.” Their use at trial is unpredictable and therefore, to be avoided as much as possible, whereas seldom are letters from lawyers offered into evidence.

Clients with social-networking site accounts should be tasked, immediately, with gathering all of their communications bearing on any issue in the case, as they are advised about appropriate limits on future communications involving those topics.

Given the paucity of relevant state case law, it is unclear but doubtful whether the “private” section of one’s Facebook account, for example, is beyond the reach of an opponent’s discovery. It very likely is not. One court, citing cases pro and con, concluded that a “plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section.” (Giacchetto v. Patchogue-Medford Union Free School Dist. (E.D.N.Y. 2013) 293 F.R.D. 112, 116, n.1.)

The Giacchetto court was more inclined to permit discovery of contradictory or impeaching physical damage posts than it was the plaintiff’s posts about emotional distress or mood changes, and its reasoning is instructive for future disputes on this form of discovery.

The court explained:

While the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiff’s claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous. For example, a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state. (See Brown, Kathryn R., The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs, 14 Vand. J. Ent. & Tech. L. 357, 365 (2012) [‘Because social-networking Websites enable users to craft a desired image to display to others, social scientists have posited that outside observers can misinterpret that impression.’].)

Based on the foregoing information, the Court concludes that Plaintiff’s routine status updates and/or communications on social-networking websites are not, as a general matter, relevant to her claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same. The Court does, however, find that certain limited social-networking postings should be produced. First, Plaintiff must produce any specific references to the emotional distress she claims she suffered or treatment she received in connection with the incidents underlying her Amended Complaint (e.g., references to a diagnosable condition or visits to medical professionals). Moreover, in seeking emotional distress damages, Plaintiff has opened the door to discovery into other potential sources/causes of that distress. Thus, any postings on social-networking websites that refer to an alternative potential stressor must also be produced. See Holter, 281 F.R.D. at 344; Simply Storage, 270 F.R.D. at 435…. However, unfettered access to Plaintiff’s social- networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.

(Giacchetto v. Patchogue-Medford Union Free School Dist., supra, 293 F.R.D. at 116, emphasis added.)

Counsel who seek to avoid internet service provider subpoenas duces tecum, should recommend to their opposites that counsel will be charged with sorting through posts and producing relevant content. Because ISP legal department staff members will not have that skill set or compunction, and not all posts are probative, these grounds would be appropriate for a protective order. (Code of Civil Procedure §§1987.1, 2025.420, subd. (b)(1), (11); 2031.060, subd. (b)(4); see also, Giacchetto v. Patchogue-Medford Union Free School Dist., supra, 293 F.R.D. at 117, [ordering plaintiff’s counsel to go through the account in the first instance, and relying upon, Howell v. Buckeye Ranch (S.D.Ohio 2012), 2012 WL 5265170, at *1 [ordering plaintiff’s counsel to access plaintiff’s social-media accounts and produce responsive information as opposed to having plaintiff provide defendant with her usernames and passwords]; Anthony v. Atlantic Gr., Inc., (D.S.C. 2012) 2012 WL 4009490, at *2 [directing plaintiff to access and produce social-networking postings directly as opposed to having defendant seek the information from the service providers]; In re White Tail Oilfield Servs., L.L.C. (E.D.La. Oct. 11, 2012) 2012 WL 4857777, at *3 [directing party to download and produce Facebook information]; and, In re Air Crash Near Clarence Ctr., New York (W.D.N.Y. Dec. 20, 2011) 2011 WL 6370189, at *6 [denying request for authorizations subject to renewal if plaintiff’s production was insufficient]. See also, Sourdiff v. Texas Roadhouse Holdings, LLC (N.D.N.Y. 2011) 2011 WL 7560647, at * 1 [directing plaintiff’s counsel to review plaintiff’s social-networking information for production]; and, Rozell v. Ross-Holst (S.D.N.Y. 2006) 2006 WL 163143, at *4 [holding that “counsel for the producing party is the judge of relevance in the first instance”].)

If a party has provoked the ire of a judge by refusing to produce full and complete information about the case, say by withholding emails or posts the court is convinced are stored in a computer or computer system, it may order an inspection of the device.

The production of hard drives is a remedy that is typically ordered only in cases that ‘involve an extreme situation where data is likely to be destroyed or where computers have a special connection to the lawsuit.’ Memry Corp. v. Kentucky Oil Technology, N.V., 2007 WL 832937 (N.D. Cal. March 19, 2007); see also Cefalu v. Holder, 2013 WL 4102160, at * 1 (N.D.Cal. Aug. 12, 2013) (‘[b]ecause personal computers contain highly personal and sensitive material courts generally require a heightened showing of good cause’). A strong showing of spoliation of relevant evidence in the instant action would likely meet this standard. See Cefalu, 2013 WL 4102160, at * 1. However, even where a party demonstrates that ‘serious questions exist both as to the reliability and the completeness of materials produced in discovery,’ an order compelling disclosure to a forensics expert is only appropriate where there is a protocol in place that will protect against unwarranted invasion of privacy. See Advante International Corp. v. Mintel Learning Technology, 2006 WL 3371576 (N.D.Cal. Nov. 21, 2006) (declining to permit inspection of hard drives until parties worked out a protocol for the inspection). Because access to personal email is similar to production of a hard drive in terms of its invasiveness, the Court assumes that similar standards apply.

(Ingrid & Isabel, LLC v. Baby Be Mine, LLC (N.D. Cal. 2014) 2014 WL 1338480, at *9.)

The computer and Internet age have facilitated and preserved an unprecedented level of communications that may touch on elements of a dispute. Lawyers must gather, assess and advise clients about these communications and recommend appropriate limits on content and recipients of that information during or about a dispute. Forthright inventories of posts on social-networking sites having anything to do with the claims, defenses, damages and parties in the dispute, as well as a strategy for avoiding harmful variations in accounts, will lead to success when dealing with social-networking sites discovery in civil cases.

[Note: This article was presented by the author at the 2015 CAALA Vegas Convention]