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The music industry came out on top in one of its first attempts to hold an internet service provider liable for its subscribers’ unauthorized peer-to-peer file sharing.

The decision, handed down by the Fourth Circuit Court of Appeals in a dispute between BMG Rights Management and Cox Communications, outlines the obligations an ISP must fulfill to receive safe harbor protection under the Digital Millennium Copyright Act for a subscriber’s infringement. It also explains when an ISP can be held contributorily liable for its subscribers’ actions.

Read my full analysis here.

Following a recent decision from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.

In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity. Continue Reading Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant

Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction under the Federal Rules of Civil Procedure 4(k)(2), even if they have no physical presence in the United States. In reaching its decision, the court noted that the question was ripe for consideration by the court of appeals; thus, it remains to be seen whether the decision will stand if appealed.

In Plixer International, Inc. v. Scrutinizer GMHB, the District Court of Maine ruled that, while jurisdiction would not exist under Maine’s long-arm statute, the court had specific personal jurisdiction over a German company under federal long-arm statute. Rule 4(k)(2), the federal long-arm statute, provides that serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction as long as exercising jurisdiction is consistent with the U.S. Constitution and laws.

Continue Reading Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

2015 11 30 DJV NAT 218Facebook’s four-year battle on behalf of its users, seeking to quash 381 warrants obtained by the New York County District Attorney’s Office, has come to a close. The decision of the New York Court of Appeals—which is New York’s highest court—leaves Facebook users exposed to wide-ranging and largely unchecked inquiries by New York criminal prosecutors into their Facebook accounts.

The story begins in July 2013, when the New York Supreme Court—which is the trial court in New York—issued 381 warrants arising out of the district attorney’s (DA) application for warrants under the Stored Communications Act (SCA). The DA was investigating an alleged Social Security Disability fraud scheme.

The DA’s request was extraordinarily broad. The warrants functionally amounted to a request for 381 users’ entire Facebook histories. The warrants compelled Facebook to produce not only any and all text, photos or videos a user had shared with his or her limited universe of friends, but also any private messages exchanged between the user and another individual (who could have been a spouse, doctor, religious figure or attorney) as well as information the user had chosen to no longer share with anyone, such as a previous email address, a deleted friend or a hidden post, and information the user had never intended to share with anyone, such as his or her searches and location.

The warrants also compelled Facebook to produce content shared by users who were not named in the 381 warrants, and may not even have known anyone named in the 381 warrants, but who had the misfortune of posting on the timelines of those users uploading photos of those users, or simply belonging to any one of the groups with which a named user was affiliated. At least several of the affected users were high school students who were highly unlikely to have been involved in a Social Security Disability fraud scheme. The issuing court also expressly prohibited Facebook from disclosing the existence or execution of the warrants.

While Facebook receives many such requests from law enforcement each year and often provides information in response, Facebook strongly objected to the wide-ranging requests in this case.

Facebook moved to quash the warrants on the ground that they were overly broad, but the New York Supreme Court denied the motion, finding that Facebook did not have standing to assert any privacy or Fourth Amendment rights on behalf of its users. Facebook also challenged the nondisclosure provisions of the warrants, but again the court sided with the DA, reasoning that disclosure of the warrants could jeopardize the DA’s ongoing investigation.

The intermediate appellate court dismissed Facebook’s appeal. The court explained that the orders from the lower court denying Facebook’s motion to quash were unappealable because, under New York law, there is no authority permitting review of interlocutory orders issued in criminal proceedings.

Facebook took the fight all the way to the New York Court of Appeals. Facebook argued that an order denying a motion to quash an SCA warrant should be treated like an appealable order denying a motion to quash a subpoena, rather than like an unappealable order denying a motion to quash a traditional warrant. While a traditional search warrant authorizes law enforcement officials to enter, search and seize property, an SCA warrant, like a subpoena, requires the target of the warrant to compile and turn over its own digital data.

On April 4, 2017, Facebook lost that fight when New York’s highest court ruled that it does not have authority to hear appeals from motions to quash search warrants issued under the SCA.

In a 5-1 decision, the Court of Appeals concluded that, despite the similarities between the manner of responding to SCA warrants and the manner of responding to subpoenas, an SCA warrant is a warrant, not a subpoena. As with traditional warrants, SCA warrants are only issued in criminal proceedings to a government entity that has supported its request for a warrant with probable cause. The court explained that the difference between execution of traditional warrants and SCA warrants is due to “the nature of the material sought”—it “ensures efficiency and minimizes intrusion” for a service provider to search and compile its own digital information rather than for law enforcement to conduct the search. Accordingly, the Court of Appeals found that the order denying Facebook’s motion to quash was not appealable.

Further, the Court of Appeals suggested that Facebook may not have had a right to bring a motion to quash in the first place. For purposes of this case, the Court of Appeals assumed, without deciding, that a motion to quash an SCA warrant was proper. However, the court noted that the SCA discusses warrants, subpoenas and court orders requiring disclosure of information separately, and only expressly provides for a motion to quash court orders.

The Court of Appeals did express some sympathy for Facebook’s concerns regarding the privacy of its users. At the outset, the court stated that “[t]his case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizures,” and that it was “tempting for the court to address those issues.” The court also noted that “Facebook’s concerns, as a third party, about overbroad SCA warrants may not be baseless.”

Notwithstanding its expressed concerns, and over a strenuous dissent from Judge Wilson, the New York Court of Appeals has provided criminal prosecutors wide-ranging investigative powers without providing Internet service providers an ability to obtain appellate review. With New York’s high court having spoken, the online industry’s focus is likely to shift toward a legislative fix that will promote users’ privacy interests and limit overreaching SCA warrants.

*        *       *

For other Socially Aware posts addressing user data and the Stored Communications Act, please see the following: Google Ordered to Comply with Warrant for Foreign-Stored User Data; Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach; and We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion To Quash District Attorney’s Subpoena.

 

GettyImages-whitebackground_514259478-[Converted]Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago seeking to balance the needs of two factions: Content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of their customers.

For the Internet companies, Congress offered relief by creating a number of “safe harbors” shielding such companies from copyright-related damages arising from their customers’ infringing activities.

In particular, the DMCA established four distinct safe harbors for online service providers, each safe harbor aimed at a different type of online activity (i.e., transitory digital network communications; system caching; online hosting; and provision of information location tools) and each with its own set of eligibility requirements.

To qualify for any of these DMCA safe harbors, however, the DMCA requires that service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”

Despite the threshold importance of repeat infringer policies, the DMCA left many questions unanswered. Who exactly counts as an “infringer”? Does it include every user accused of infringement or only those found culpable in court? If it’s somewhere in between, what level of proof is required before a service provider is required to take action? Can the repeat infringer policy differentiate between those who upload infringing content for others to copy and share and those who only download such content for their own personal viewing? And how many acts of infringement does it take to become a “repeat infringer” anyway? Continue Reading Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors

Because content posted online can be accessed nearly anywhere, courts regularly face the issue of whether they have personal jurisdiction over a defendant who posted material to the web or a social media site. Recently, one New York federal court held that the mere fact, standing alone, that copyrighted material posted online was accessible in New York did not create a “situs of injury” sufficient to support personal jurisdiction under New York’s long-arm statute.

In Pablo Star Ltd., et al. v. The Welsh Government, et al., the Ireland and UK-based owners of the copyright in two photographs of poet Dylan Thomas sued the Welsh government and its “Visit Wales” tourism bureau, as well as a number of content publishers, including the Tribute Content Agency, LLC, the Pittsburgh Post-Gazette, and the Miami Herald Media Co. While the Welsh government defendants were dismissed on sovereign immunity grounds, the court was left to consider whether it had personal jurisdiction over the publisher defendants, none of which were based in New York.

The court quickly rejected any arguments regarding general personal jurisdiction, which renders a defendant amenable to suit on all claims that could be asserted in a jurisdiction. The court recognized that establishing general jurisdiction is exceedingly difficult under prevailing Supreme Court precedent. Thus, the court turned to New York’s long-arm statute, which among other bases for obtaining jurisdiction over a defendant, would require “a tortious act [outside] the state causing injury to person or property within the state.”

The court found that, because intellectual property is intangible, the injury in copyright or trademark infringement is generally in the state where the intellectual property is held—that is, the domicile of the owner of the intellectual property at issue. The court held that because the plaintiffs are foreign corporations, the situs of the injury cannot be New York.

Plaintiffs argued that they were injured in New York “specifically due to lost or threatened business” as they were “deprived [of] the potential opportunity to license and publish their copyrighted photos here.” The court rejected this argument on two grounds.

First, as a matter of principle, such a “market harm” theory could justify jurisdiction “anywhere that the internet is accessible,” opening up a defendant to being sued anywhere and everywhere. Moreover, unlike most tort cases, where the location of plaintiff’s injury is often singular and identifiable, the injury in online copyright infringement cases is “difficult, if not impossible” to pinpoint to a particular geographic region.

Second, the court reasoned that, to the extent identifiable, the injuries in this case are the fees that should have been paid by the publisher defendants—none of which are based in New York.  Therefore, the simple fact that “New Yorkers can access the infringing content online” is insufficient to establish personal jurisdiction in New York.

The Pablo Star case teaches that copyright owners cannot simply point to the fact that material has been posted online and sue anywhere in the United States. Copyright owners must still establish personal jurisdiction over each defendant they sue for infringement. In case like this—in which a foreign copyright owner named as defendants seven separate publishers that are located in various jurisdictions—a copyright owner may need to bring separate actions in different jurisdictions against each defendant. While onerous for foreign copyright owners, the outcome protects against hauling a defendant into a jurisdiction with which it may have few connections.

For other Socially Aware posts on Internet-related copyright law issues, please click here.

scientific_CloudComputing45It seems that almost everyone uses social media today. Of course, this means that most every juror is a social media user, and that courts are dealing with the thorny questions that arise out of the proliferation of social media usage among jurors.

Like the long-standing practice of warning jurors not to talk about the case with friends and family or to read press reports about the case during the course of trial, courts now routinely caution jurors not to send messages about the case through social media, tweet about the case or look for reports about the case on social media sites. Courts are also taking notice of the potential pitfalls that arise when attorneys poke around prospective jurors’ social media sites to try to decide who may be a friendly (or unfriendly) juror.

Recently, a federal court in the Northern District of California addressed this subject in the high-profile copyright case Oracle v. Google. The case concerns allegations that Google unlawfully incorporated parts of Oracle’s copyrighted Java code into the Android operating system.

In a recent order, the court asked counsel for Oracle and Google to refrain from conducting any Internet research on potential or empaneled jury members prior to the trial verdict. Because an outright ban would have the unintended consequence of prohibiting the lawyers for the parties—but no one else in the courtroom—from accessing online information on the jurors, the court opted instead to seek the parties’ agreement to a voluntary ban. As added incentive to reach agreement, the court offered counsel for both sides extra time to screen potential jurors during voir dire. Both parties ultimately agreed to the voluntary ban.

The court cited three reasons to support its decision to seek the ban.

First, the court reasoned that jurors, upon learning that counsel was investigating them, might be tempted to investigate the lawyers and the case online themselves. And because there is plenty of information online about the high-profile dispute, the court saw an “unusually strong need” to deter any jury member from conducting out-of-court research. The court noted, for example, that a Google search for “Oracle v. Google” yields almost one million hits, and that both parties have hired online commentators to promote their respective sides of the case on blogs and other websites. Because the large amount of online commentary in particular could present a significant risk to a fair hearing, a ban would help ensure that the jury reaches a verdict on the basis of trial evidence only.

Second, the court ruled that online jury research could enable counsel to make “improper personal appeals” to individual jurors during jury argument. For instance, if counsel learns through a social media search that a juror’s favorite book is To Kill a Mockingbird, counsel could, in an attempt to capture the attention of an empaneled juror, craft an argument regarding copyright law that weaves in references to that book and the recent death of Harper Lee. The court reasoned further that such calculated appeals would be “out of bounds” because the judge might not “see what was really in play.”

Third, a voluntary ban would protect the privacy of potential jurors. Because “[t]hey are not celebrities or public figures,” the court ruled that the privacy of potential jurors should not be invaded except to reveal bias or a disinclination to follow court instructions. In anticipation of the argument that potential jurors choose to expose themselves to public scrutiny through their social media privacy settings, the court ruled that “understanding default settings is more a matter of blind faith than conscious choice.”

The court’s approach creates new precedent in the area of jury selection procedure, where to date parties have been left with little guidance. Indeed, the court itself recognized that “there are precious few decisions” that address the specific issue of whether counsel may conduct Internet and social media research on jurors in their cases.

Existing guidance on this issue stems largely from the American Bar Association (ABA), which has stated that counsel’s “passive review” of a juror’s website or social media profile, while refraining from making access requests to jurors, does not violate ethical rules on ex parte jury communications. That being said, even the ABA has cautioned that courts may limit social media research in certain cases.

Similarly, the New York State Bar Association (NYSBA) advised recently that, prior to jury selection, judges should address and resolve, on a case-by-case basis, use of social media by attorneys for the purpose of investigating jurors. Relevant questions to consider include what social media services attorneys may review; which social media platforms counsel or her reviewing agent (e.g., a jury consultant) is a member of; and whether results of social media monitoring will be shared with opposing counsel and the court.

The Google v. Oracle decision represents a key step toward marking clear boundaries for social media and Internet investigation by counsel. Further, the decision shows that, left unchecked, online jury research could lead to improper jury appeals, unwarranted privacy invasions, and—perhaps most importantly—compromise of the fair trial process.

As social media use continues to proliferate, we can expect that courts and bar associations will provide further guidance on how attorneys can properly use social media to research the background of both prospective and sitting jurors.

For more on ethical considerations arising from social media use by attorneys, see our recent blog post on New Jersey Supreme Court Questions Ethics of “Friending” a Litigation Foe.

0426FRIENDS_imageAttorneys often research adverse parties online to obtain potentially useful—and publicly available—evidence for use in a case. But, as an ethical matter, may an attorney access information available only through an adversary’s private social media account?

The New Jersey Supreme Court just considered this question in a professional-misconduct complaint involving “Facebook spying” of a plaintiff by opposing counsel. In a recent ruling, the court held that attorneys who access an opposing party’s private Facebook account without proper consent may face discipline for unethical conduct.

The disciplinary case arises out of a personal injury matter, in which the plaintiff sued the borough of Oakland, New Jersey, over injuries he sustained after allegedly being hit by a local police cruiser in 2007. Although the plaintiff had a private Facebook page, the borough’s defense attorneys enlisted a paralegal at their firm to send a Facebook friend request to the plaintiff. The paralegal did not identify herself as an agent of defense counsel, and the plaintiff accepted the paralegal’s request without realizing that she worked for the borough’s counsel.

But when the defense attorneys later sought to introduce printouts of the plaintiff’s Facebook page at trial and included the paralegal on their witness list, the plaintiff realized that opposing counsel had been spying on him through the paralegal.

The plaintiff brought the conduct of defense counsel to the attention of the New Jersey Office of Attorney Ethics, which is now investigating the matter. The Office of Attorney Ethics alleges in a complaint filed with a state ethics committee that defense counsel had violated numerous New Jersey Rules of Professional Conduct. These violations include, for example, improper communication with a person represented by counsel; failure to supervise a non-lawyer assistant; and engaging in “dishonesty, fraud, deceit, or misrepresentation.” The defense attorneys claim that they acted in good faith and that they were unfamiliar with the privacy settings on Facebook.

To be clear, no final decision has been issued on the merits of this case, as the New Jersey Supreme Court’s ruling confirms only that the Office of Attorney Ethics has discretion to review the ethics complaint. The case will now proceed to a merits hearing.

But even if New Jersey has yet to rule definitively on the ethics of social media spying, existing guidance offers a cautionary note. For example, the New York City Bar Association has stated that “[a] lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.” Similarly, the Massachusetts Bar Association has stated that party counsel may “friend” an unrepresented adversary only when that lawyer discloses his or her identity as the party’s lawyer. Likewise, the Philadelphia Bar Association has held that an attorney may seek access to the private social media page of a witness only by doing so “forthrightly,” or by revealing that he or she is an attorney in the litigation.

Attorneys would do well, therefore, to ensure that they do not contact an adversary on social media—and especially not without first identifying whom they represent. Engaging in subterfuge to gain access to the private social media site of an adversary is likely to get you into hot water.

Contract

Courts have generally categorized online agreements into two types: “clickwrap” agreements and “browsewrap” agreements.

Clickwrap agreements—which require a user to check a box or click an icon to signify agreement with the terms—are usually enforceable under U.S. law, even where the terms appear in a separate hyperlinked webpage but where language accompanying the box or icon indicates that checking the box or clicking the icon indicates assent to such terms.

On the other hand, browsewrap agreements—where the terms are passively presented to users in a hyperlink somewhere on a webpage, often at the very bottom of the page in small font—are often unenforceable because it often cannot be proved the user knew the terms existed or even was aware of the hyperlink.

A New Jersey court recently faced a type of online agreement that did not fit nicely into either category. Where a contract, sent electronically but signed in hard copy, contains a hyperlink to a separate terms and conditions page, are those separate terms incorporated into the agreement? In Holdbrook Pediatric Dental, LLC, v. Pro Computer Service, LLC, the New Jersey court said no. A requirement to arbitrate disputes buried in the online terms and conditions page was not incorporated into a contract where the contract merely stated “Download Terms and Conditions” near the signature line.

Again, the signed contract did not itself contain an arbitration clause. Rather, on the last page of the contract, directly above the signature line, the following appeared in small text: “<a href=“http://www.helpmepcs.com/site_media/terms.conditions.pdf”>Download Terms and Conditions </a>”, which, if viewed in HTML, would instead appear as “Download Terms and Conditions”. The signed contract looked like this:

Holbrook

Holdbrook’s office manager, Nancy McStay, received the contract in electronic form where the hyperlink was clickable, but then printed and signed a hard copy. PCS argued that because McStay signed the contract, one could assume that she read and agreed to the entire agreement, including the hyperlinked terms and conditions. Holdbrook disagreed. They argued that the contract did not incorporate the terms and conditions for several reasons.

First, the online terms and conditions contained a separate signature block, suggesting that it required additional acceptance, and Holdbrook never signed onto those terms.

Second, Holdbrook claimed that McStay had no idea that additional terms were being incorporated, given the garbled coding of the hyperlink in the printed copy and the fact that the contract contained no clause specifically pointing to the separate terms and conditions.

Applying New Jersey contract law, the court held that “a separate document may be incorporated through a hyperlink, but the traditional standard nonetheless applies: the party to be bound must have had reasonable notice of and manifested assent to the additional terms.”

After describing clickwrap and browsewrap agreements, the New Jersey court examined two key cases in this area, Fteja v. Facebook, Inc. (which we’ve discussed previously) and Swift v. Zynga Game Network, Inc. In Fteja, a New York court found that a user had sufficient notice of Facebook’s terms of service even though the terms were only visible to the user during sign-up via hyperlink (like a browsewrap). A notice above the “Sign Up” button stated that “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service” (like a clickwrap).

Similarly, in Swift, a California court found that a hyperlink to the terms of services that appeared right below an “Accept” button—along with a statement that clicking “Accept” meant the user accepted the terms—was sufficient to prove the user agreed to those terms.

The New Jersey court explained that the fact that this case involved “mixed media” did not matter. The contract was “much like the ‘clickwrap’ agreements in Fjeta [sic] and Swift, where the ‘Terms and Conditions’ were contained in a hyperlink immediately next to a mechanism for accepting the agreement. In place of an ‘I Accept’ icon to be clicked, a Holdbrook representative was required to sign the agreement on paper.”

However, the New Jersey court found one crucial component to be missing. In Fteja, Swift and other clickwrap cases, a statement draws “the user’s attention to the hyperlink” that is “sufficient to provide reasonable notice that assent to the contract included assent to the additional terms.” The New Jersey court noted that there was no such statement in this case, nor instructions to sign the contract only if Holdbrook also consented to the additional terms. The hyperlink, standing alone, was insufficient to show that Holdbrook had “reasonable knowledge” that the terms and conditions were part of the contract.

“Further complicating matters” was the fact that the contract was sent in electronic form but could not be accepted in electronic form. It had to be printed and signed. This made it even less clear that the hyperlink contained additional terms.

The New Jersey court noted that discovery might show that Holdbrook actually reviewed the contract electronically, noticed the hyperlink and agreed to its terms. In fact, after conducting some limited discovery, PCS has filed a new motion to compel arbitration, which, as of the date of this post, is currently pending before the court.

Like the courts in Fteja, Swift and other clickwrap cases, the New Jersey court took careful note of the language that surrounded the hyperlink to the terms and conditions to determine whether Holdbrook reasonably understood those additional terms were included in the contract. It seems that, for the court, PCS’s “Download Terms and Conditions” was just a little too similar to a “browsewrap” agreement to be found enforceable without further inquiry into whether Holdbrook in fact was aware of and agreed to the terms.

PCS could have likely avoided the issue entirely by simply including the following language in the signed agreement: “By signing the agreement, you also accept the Terms and Conditions on the PCS website.”

When it comes to clickwrap versus browsewrap agreements, a few words can go a long way.

MagManWhile discovery of social media information has been commonplace for some time, courts are still struggling with when such discovery should be allowed. While courts generally hold that normal discovery rules apply to social media discovery, at least one judge has identified—and railed against—emerging trends in such cases that impose additional hurdles for litigants seeking discovery of social media information.

Recently, in Forman v. Henkin, a divided New York State Appellate Division panel debated whether requests for Facebook photos are subject to the same standard as any other discovery request. In this personal injury case, the plaintiff, Kelly Forman, alleged that she was injured when a leather stirrup broke while she was riding one of defendant’s horses, sending her tumbling to the ground and causing Forman physical and mental injuries. Forman claimed that her injuries have limited her social and recreational activities and that her “social network went from huge to nothing.”

The trial judge granted the defendant’s request for Forman’s social media activity, including:

(1) “all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial,”

(2) “all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters,” and

(3) “authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages.”

In an unsigned opinion for four of the five justices on the panel, a New York appeals court reversed the trial court and substantially limited the scope of the defendant’s request, allowing discovery only of photographs posted on Facebook “either before or after the accident” that Forman “intends to use at trial”—effectively gutting the discovery request.

Citing long-standing principles of discovery and New York’s civil procedure rules, the panel held that discovery should include only matters “material and necessary” to the action, and the party seeking discovery must demonstrate that the request is “reasonably calculated” to lead to relevant information. In contrast, “hypothetical speculations calculated to justify a fishing expedition” are improper.

Applying these principles, the panel concluded that the defendant failed to establish that the request for either the private photos or messages might produce relevant information.

While the majority resoundingly rejected the accusation that it was applying different discovery rules for social media information, Justice Saxe, dissenting, identified two emerging trends in discovery procedures that he viewed as “problematic”: First, that a defendant is permitted to seek discovery of a plaintiff’s nonpublic social media information “if, and only if, the defendant can first unearth some item from the plaintiff’s publicly available social media postings that tends to conflict with or contradict the plaintiff’s claims”; and second, that trial courts must then “conduct an in camera review of the materials . . . to ensure that the defendant is provided only with relevant materials.” According to Justice Saxe, these two developments, applied in this case and other recent rulings, amount to extra procedural burden on the party seeking social media discovery, and add a substantial and unnecessary burden to often overworked trial courts.

Instead, Justice Saxe advocated applying the traditional discovery approach of any other document request—that is, treating social media information the same as any other document, tangible or electronic. Thus, a demand must have a reasoned basis that the requested category of items bears on the controversy, and must not be overbroad and fail to distinguish relevant from irrelevant items. In most contexts, the defendant describes a type of content relevant to the claimed event or injuries and the plaintiff locates such documents in his or her possession or control. Judge Saxe noted that a party is not normally required to prove the existence of relevant material before requesting it. In sum, “[u]pon receipt of an appropriately tailored demand, a plaintiff’s obligation would be no different than if the demand concerned hard copies of documents in filing cabinets.”

Finally, Justice Saxe pointed out that the majority’s focus on “private” Facebook photos should not be a legitimate basis for treating social media information differently. Such “private” photos are by definition shared with at least a small universe of individuals—a Facebook user’s Friends or a Group—and the expectation of privacy for such posts is low.

Even in light of Justice Saxe’s critique, the majority held firm that the discovery standard they applied is the same for social media information as it is for any other documents and that the request was an unreasonably broad fishing expedition.

This case can perhaps best be understood as a lesson in specificity in social media discovery requests. Courts may simply feel uneasy authorizing broad discovery requests regarding social media, which they may perceive as more personal and private. The panel clearly felt uneasy about the “unbridled” scope of the social media discovery request, and suggested that the dissent’s position is a slippery slope that leads to production of all information stored in “social media, a cell phone or a camera, or located in a photo album or file cabinet,” or even in “diaries, letters, text messages and emails.”

We wonder how the court would have dealt with a more targeted request—for instance, a request for all “private” Facebook photographs after the accident that depict Forman engaging in strenuous physical activity. As we’ve previously discussed, courts have regularly demanded specificity in discovery requests for social media information and have rejected requests that are not narrowly tailored to potentially relevant information.

This case demonstrates that, while the legal standard for discovery may technically be clear, courts are still grappling with the level of procedural protection such information should be afforded. This issue will surely be the topic of future litigation for years to come.