The Legal Intelligencer E Discovery Supplement January 2012 : Page 3

January 2012 TUESd a y, J a NU a R y 31, 2012 E-Discovery • 3 Discoverability and Spoliation in Online Social Networks By Sean R. Sullivan Special to the Legal O nline social networks are a rich source of potential discovery in civil litigation. Social network users often treat these websites like virtual diaries, documenting their lives by reveal-ing private thoughts and pictures. The candidness of such communications, how-ever, has the potential to result in powerful evidence when a user of a social network is involved in litigation. As a result, content from such social networking sites has increasingly become the subject of discov-ery requests. The “public” portions of a person’s social networking site — the portions that are not subject to any user-controlled privacy restrictions — can be obtained by anyone with a computer (or a smartphone). Discovery tools are not needed to obtain such public content. The “private” portions of a social networking site — the portions that can be accessed only by the user and the people he or she has designated as online “friends” — are not readily accessi-ble. Ethics opinions have uniformly con-cluded that lawyers cannot surreptitiously “friend” a party for the purpose of obtain-ing access to the private portions of a social networking site. Discovery tools like docu-ment production requests and subpoenas, therefore, provide the best avenue to obtain social networking site content. The discovery of content from social networking sites requires lawyers and SeaN r. SullivaN practices appellate and complex commercial lit-igation with Curtin & Heefner. His practice includes managing e-discovery matters in business litigation and counseling clients on document preservation obligations. He can be reached at srs@curtinheefner.com. courts to adapt old legal rules to the new circumstances created by the ubiquity and transient nature of social networks. The legal principles governing discoverability, preservation of evidence and spoliation are well established. This article examines the application of these principles to the dis-covery of social networking site content. DiScOverability Of SOcial NetwOrkiNg cONteNt Evidence is discoverable if it is nonprivi-leged and is potentially relevant to a claim or defense. No Pennsylvania appellate court has yet opined on the discoverability of content from online social networks. Several trial court opinions from multiple counties, however, have addressed the issue. The consensus that has emerged thus far is that private social networking content is discoverable as long as the requesting party can make the threshold showing that the information sought is potentially relevant. For example, in Largent v. Reed , the Franklin County Common Pleas Court held that private social networking content was discoverable where information that had been posted to the public portions of the plaintiff’s Facebook page contradicted her claims of chronic pain. The court explained: “It is clear that material on social networking websites is discoverable in a civil case. Pennsylvania’s discovery rules are broad, and there is no prohibition against discovery of relevant information.” In Kennedy v. Norfolk Southern Corp. , however, the Philadelphia Common Pleas Court held that a plaintiff’s private Facebook page was not discoverable, where the defen-dant failed to make any threshold relevance showing. In that case, the defendant merely established the existence of the plaintiff’s Facebook account. The defendant did not, however, use other discovery tools to estab-lish the potential relevance of the informa-tion on that account. PreServatiON aND SPOliatiON A person has a duty to preserve evidence that may be relevant to litigation once that party reasonably anticipates the possibility of litigation. Spoliation is the destruction of evidence that one is obligated to preserve. When spoliation occurs, a court has broad discretion to impose sanctions, which can include the imposition of financial penal-ties, an adverse inference instruction or even dismissal of a lawsuit. The applicable sanctions are usually based on several fac-tors, including: (1) the degree of fault by the party who destroyed the evidence; (2) the degree of prejudice caused by the destruction of the evidence; and (3) wheth-er a sanction less than dismissal will remedy the unfairness to the aggrieved party and also will serve to deter discovery miscon-duct by other parties in the future. The dynamic nature of social networks presents a significant discovery challenge. A typical Facebook or Twitter page under-goes numerous changes throughout a day, as pictures are posted (or deleted), wall comments or tweets are made and “status updates” are changed. Most users of social networks give little — if any — thought to the legal implications of such routine changes to their accounts. If, however, that person is or may become involved in a law-suit, such routine changes to a social net-working profile may result in spoliation. Because of the potential for spoliation, it is incumbent upon lawyers to ask their cli-ents early in litigation whether they main-tain any social networking accounts. If so, the lawyer must work with the client to take whatever steps are reasonably neces-sary to ensure that the data is preserved. Additionally, when representing a business or other institution, the document preser-vation notice that the lawyer sends to the institutional client should include instruc-tions to preserve the social networking sites maintained by employees, officers or other potential witnesses in the control of the client if it is reasonably possible that such social networking sites may contain Social Media continues on 9

Discoverability And Spoliation In Online Social Networks

Sean R. Sullivan

Online social networks are a rich source of potential discovery in civil litigation. Social network users often treat these websites like virtual diaries, documenting their lives by revealing private thoughts and pictures. The candidness of such communications, however, has the potential to result in powerful evidence when a user of a social network is involved in litigation. As a result, content from such social networking sites has increasingly become the subject of discovery requests. The “public” portions of a person’s social networking site — the portions that are not subject to any user-controlled privacy restrictions — can be obtained by anyone with a computer (or a smartphone). Discovery tools are not needed to obtain such public content. The “private” portions of a social networking site — the portions that can be accessed only by the user and the people he or she has designated as online “friends” — are not readily accessible. Ethics opinions have uniformly concluded that lawyers cannot surreptitiously “friend” a party for the purpose of obtaining access to the private portions of a social networking site. Discovery tools like document production requests and subpoenas, therefore, provide the best avenue to obtain social networking site content. The discovery of content from social networking sites requires lawyers and courts to adapt old legal rules to the new circumstances created by the ubiquity and transient nature of social networks. The legal principles governing discoverability, preservation of evidence and spoliation are well established. This article examines the application of these principles to the discovery of social networking site content. DiScOverability Of Social NetwOrkiNg cONteNt Evidence is discoverable if it is nonprivileged and is potentially relevant to a claim or defense. No Pennsylvania appellate court has yet opined on the discoverability of content from online social networks. Several trial court opinions from multiple counties, however, have addressed the issue. The consensus that has emerged thus far is that private social networking content is discoverable as long as the requesting party can make the threshold showing that the information sought is potentially relevant. For example, in Largent v. Reed, the Franklin County Common Pleas Court held that private social networking content was discoverable where information that had been posted to the public portions of the plaintiff’s Facebook page contradicted her claims of chronic pain. The court explained: “It is clear that material on social networking websites is discoverable in a civil case. Pennsylvania’s discovery rules are broad, and there is no prohibition against discovery of relevant information.” In Kennedy v. Norfolk Southern Corp., however, the Philadelphia Common Pleas Court held that a plaintiff’s private Facebook page was not discoverable, where the defendant failed to make any threshold relevance showing. In that case, the defendant merely established the existence of the plaintiff’s Facebook account. The defendant did not, however, use other discovery tools to establish the potential relevance of the information on that account. PreServatiON aND SPOliatiON A person has a duty to preserve evidence that may be relevant to litigation once that party reasonably anticipates the possibility of litigation. Spoliation is the destruction of evidence that one is obligated to preserve. When spoliation occurs, a court has broad discretion to impose sanctions, which can include the imposition of financial penalties, an adverse inference instruction or even dismissal of a lawsuit. The applicable sanctions are usually based on several factors, including: (1) the degree of fault by the party who destroyed the evidence; (2) the degree of prejudice caused by the destruction of the evidence; and (3) whether a sanction less than dismissal will remedy the unfairness to the aggrieved party and also will serve to deter discovery misconduct by other parties in the future. The dynamic nature of social networks presents a significant discovery challenge. A typical Facebook or Twitter page undergoes numerous changes throughout a day, as pictures are posted (or deleted), wall comments or tweets are made and “status updates” are changed. Most users of social networks give little — if any — thought to the legal implications of such routine changes to their accounts. If, however, that person is or may become involved in a lawsuit, such routine changes to a social networking profile may result in spoliation. Because of the potential for spoliation, it is incumbent upon lawyers to ask their clients early in litigation whether they maintain any social networking accounts. If so, the lawyer must work with the client to take whatever steps are reasonably necessary to ensure that the data is preserved. Additionally, when representing a business or other institution, the document preservation notice that the lawyer sends to the institutional client should include instructions to preserve the social networking sites maintained by employees, officers or other potential witnesses in the control of the client if it is reasonably possible that such social networking sites may contain discoverable information. No reported Pennsylvania opinions have applied spoliation principles to a case involving the destruction of social media content. Decisions from other jurisdictions, however, have concluded that alterations to a party’s Facebook page may constitute spoliation. One such case involving the intentional deletion of potentially damaging pictures, Lester v. Allied Concrete Co., resulted in a sanctions award of more than $700,000 by the Charlottesville Circuit Court in Virginia. Lester was a wrongful death case brought by the husband of a woman killed in an automobile accident. The plaintiff’s Facebook account included pictures that showed the plaintiff, after his wife’s death, socializing with friends while drinking beer and wearing a provocative T-shirt. After receiving a discovery request for the plaintiff’s Facebook page, the plaintiff’s lawyer issued the ultimately costly instruction to “clean up” the Facebook page to avoid “blowups of this stuff at trial.” The lawyer then instructed the plaintiff to delete his Facebook account, so that they could answer the discovery requests by asserting that the plaintiff had no Facebook account, according to the opinion. The plaintiff and his lawyer then engaged in a pattern of deceptive conduct designed to cover up their scheme. The trial court awarded $722,000 in sanctions — apportioning $180,000 to the plaintiff and $542,000 to the plaintiff’s lawyer — to compensate defendants for the significant expenses they incurred in their efforts to obtain that deleted information. Social NetwOrk PrOviDerS aS DiScOvery tOOlS The deletion of information from a user’s social networking site does not always mean that such information becomes permanently inaccessible. Social networking sites, like Facebook and Twitter, maintain archives of users’ accounts. Subpoenas directed to social networking sites directing the production of that archived data would seem to be the most efficient discovery tool for obtaining that information. Facebook’s privacy policy seems to contemplate such subpoenas: “We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so.” (See www.facebook.com/about/privacy/other.) Social networking sites, however, have relied upon a federal statute that pre-dates the current digital age — the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. — as a shield to the production of such information. Facebook, for example, has asserted in response to a civil subpoena that “the SCA prohibits service providers from disclosing user content pursuant to subpoenas issued on behalf of private parties.” The few reported decisions that have addressed this issue have held that the SCA is a shield that prevents Facebook and other social network providers from producing private content from users’ accounts in response to civil subpoenas. Other discovery mechanisms, however, may allow parties to obtain such archived information without the restrictions of the SCA. Document production requests directed to a party who is a user of a social networking service are one such mechanism of obtaining deleted content. Parties generally must produce discoverable electronic information that is within their “control.” Control, for discovery purposes, is not limited to documents that a party physically controls but also includes documents that are reasonably accessible to a party. For example, in Romano v. Steelcase Inc., the plaintiff claimed that personal injuries she suffered in an accident prevented her from leading an active lifestyle. The defendant sought to discover the private portions of the plaintiff’s Facebook and MySpace accounts, along with the accounts’ archival information, because the public portions of her account appeared to contradict her injury claims. Rather than subpoena Facebook and MySpace — and run into the roadblock of the SCA — the defendant issued discovery that included requests that the plaintiff consent to the release of her current and deleted account information that was archived by Facebook and MySpace. When the plaintiff refused to execute the consents, the court granted the defendant’s motion to compel, explaining that denying the defendant “an opportunity to access these sites ... would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings,” according to the opinion issued by New York’s Suffolk County Supreme Court. Thus, the court issued an order directing the plaintiff to provide defense counsel “a properly executed consent and authorization as may be required by the operators of Facebook and MySpace permitting ... Defendant to gain access to Plaintiff’s Facebook and MySpace records.” In addition, Facebook includes an application that allows users to download their archives. That application is found at www.facebook.com/download. A party seeking discovery from a Facebook page should demand at the earliest opportunity that the opposing party download his or her Facebook archive to preserve any potentially discoverable information. Even if no such demand is made, an attorney should insist that his or her client download the client’s Facebook archive, to avoid (or minimize) potential spoliation problems. SeaN r. SullivaN practices appellate and complex commercial litigation with Curtin & Heefner. His practice includes managing e-discovery matters in business litigation and counseling clients on document preservation obligations. He can be reached at srs@curtinheefner.com.

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