Tuesday, August 19, 2014

Social Media Discovery

Facebook logo Español: Logotipo de Facebook Fr...
Facebook logo Español: Logotipo de Facebook Français : Logo de Facebook Tiếng Việt: Logo Facebook (Photo credit: Wikipedia)
I get a chance to speak at CLE's across the country on social media discovery. I am amazed by number of lawyers who just have no idea about what is happening when it comes to developing caselaw on this important subject. 

Before searching the internet far and wide, make sure that you have in your briefcase the go to case of  Trail v. Lesko:

The case involved a car wreck that injured one driver.  The parties both asked to have the other side produce Facebook posts and pictures.  Predictably, the parties fought the request, nobody produced anything, and both parties filed motions seeking to compel their opponent to turn over his Facebook password and username.

 The defendant sought access to the plaintiff's Facebook account, claiming that the account "may" contain evidence of the "extent and severity" of the plaintiff's injuries. The defendant supported his motion with pictures of the injured plaintiff "socializing" at a bar and "drinking at a party," which the defendant had obtained from the publicly available portions of the plaintiff's Facebook account.
Judge Wettick waded into the world of Facebook in the opinion.
He first wrote about Facebook and how it works:  "The sheer volume of potentially relevant information is staggering.In the aggregate, users collectively update their “statuses”(a short indication of what’s on a user’s mind at a given moment, posted to the their own profile page) more than 60 million times each day. Individual users create on average 90 pieces of content every month (photos, status updates, comments or other posts) with fully half of all Facebook users accessing their individual profiles on a given day. Facebook users collectively upload 300 million photos to the site each day"
 He wrote that before a requesting party is  granted "access" to a Facebook account, the party must show a "sufficient likelihood" that the non-public postings would contain information that is relevant to the litigation that is "not otherwise available."  Otherwise, the court held, Rule 4011(b), which protects against discovery that is unreasonably annoying or embarrassing, prohibits unfettered access to a social-networking site.
The Judge went on to note - correctly in my opinion - "a court order which gives an opposing party access to Facebook postings that were intended to be available only to persons designated as “Friends” is intrusive because the opposing party is likely to gain access to a great deal of information that  has nothing to do with the litigation and may cause embarrassment if viewed by others."
Read the opinion first. There are useful nuggets in it, and like most cases dealing with discovery, the case is not a one size fits all approach.