Friday, April 06, 2012

Social Media Discovery - Recent Cases

There are new and recent cases to report on regarding discovery of social networking evidence in the context of civil litigation.

From a practice context, the cases seem to trend towards reasonable discovery. In my office, we will oppose any counsel's request for seeking passwords of a site, or for a request for permission to 'friend' a litigant. Why? The password request is akin to asking for the keys to your house. Friending? Opposing counsel could not talk to your client without you present, so why would a Court allow a virtual contact to occur?

Reasonable time limits should be a key point, and a Court should be the arbiter of what should be produced.  Opposing counsel has no business - in the real world - of learning about a litigant's membership in (for example) a Book of the Month Club, or a bible study. Sites like Facebook and allow a person to join affinity groups, many of which have zero relevance to a case. Don't surrender to a garden variety and overreaching production request.

Next week I'll post some of our client information and guidelines. 

In Beswick v. North West Medical Center, Inc, (November 3, 2011), a Plaintiff in a medical malpractice action objected to social media discovery. The pro forma basis for the objection was that the request "violated the client's right to privacy."   The Court did restrict the time limit to five years.

Here is the case:

In Prushanksy v. Fradley (Florida, 2011) the Plaintiff filed a Motion in Limine to exclude any references to the Defendant's Facebook page. The Court granted the Motion.

In Mancuso v. Florida Metropolitan University (S.D. FL, 2011), Plaintiff tried to quash a subpoena duces tecum to Facebook. The Motion was denied on a discreet technical issue.  Find the case here.

Other states' rulings and opinions:

Zimmerman v. Weis Markets: Court ordered Plaintiff to turn over passwords.Case here.

McMillen v. Hummingbird Speedway: Case here - The court mandated the surrender of passwords. It noted  the broad scope of discovery in Pennsylvania. Regarding any claimed expectation of privacy with regard to Facebook and MySpace, the Court held that this expectation “would be unrealistic.”

Passwords should never be turned over.   A Court may conduct an in camera review of a litigant's social media site, but it - not the opposing party - should determine what information is discoverable. Offenback v. L.M.Bowman, found here

Key language from that case:

The Court's review revealed that Plaintiff first activated his Facebook account on or about February 1, 2009, and that the account has remained active through the current date. Review of Plaintiff's Facebook account, including a thorough review of Plaintiff's "Profile" postings, photographs, and other information, reveals that the information and material contained within Plaintiff's Facebook account are unrelated in any way to the events that give rise to the cause of action in this case, and are largely irrelevant, or not likely to lead to the discovery of evidence relevant to the claims and defenses in this action.

However, in consideration of the broad scope of relevance that Defendants' have argued in favor of above, and in consideration of Plaintiff's acknowledgment that "limited [relevant] `public' information is clearly discoverable under recent caselaw," (Letter from Plaintiff to Court dated April 27, 2011), the Court finds that some small segment of the public information contained in Plaintiff's account is properly subject to limited discovery in this case.

Specifically, our review of Plaintiff's Facebook account reveals the following potentially relevant information that should be produced to Defendants:
• Plaintiff has posted a number of photographs or updates that reflect he continues to ride motorcycles and may have on more than one occasion traveled via motorcycle between his home in Kentucky and Pennsylvania. In particular, our review found a photograph posted on March 14, 2011, which appears to show Plaintiff with a Harley Davidson motorcycle that other posts suggest that he purchased in or around July 2010.
• On or about October 1, 2010, Plaintiff posted information to his account that suggests he may have traveled to West Virginia via motorcycle.
• On July 22, 2010, a post on Plaintiff's "Profile" page suggests that he had taken, or was planning to take, a trip to Pennsylvania on his motorcycle.
• On October 29, 2010, a photograph was posted to his account that may show Plaintiff hunting and in possession of a 10-point buck that he or another hunter had shot and killed.[2]
• On August 29, 2010, Plaintiff's "Profile" contains an update in which he posts photographs and comments suggesting that he may have recently ridden a mule.
• On July 7, 2010, Plaintiff posted pictures of a Harley Davidson motorcycle that it appears he may have purchased shortly before the pictures were posted.
• On July 1, 2010, Plaintiff included "motorcycles" among his interests that he posted to his Facebook profile.
• Between March 16, 2010, and March 18, 2010, friends or relatives of Plaintiff posted comments to his profile that suggest Plaintiff had traveled from Kentucky to Pennsylvania, either by motorcycle or automobile.
With the exception of the foregoing, the remainder of Plaintiff's Facebook account reveals little beyond routine communications with family and friends, an interest in bluegrass and country music, a photography hobby, sporadic observations about current events, and a passion for the Philadelphia Phillies that was not dampened after he moved to Kentucky from Pennsylvania. Other than the information described in the bulleted paragraphs above, we have identified no information from Plaintiff's Facebook account that must be produced to Defendants."