E-Discovery

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E-mails. Text messages. Instant messages. Social media. The digital age has given birth to powerful new ways to communicate that have transformed how we live and conduct business. But the proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying and losing evidence.

A reminder of the increasing danger of the digital age in discovery recently arose in the New York state attorney general’s investigation of ExxonMobil’s research into the causes and effects of climate change.

After receiving documents from Exxon pursuant to a subpoena, the state attorney general informed a New York court that it had discovered that former Exxon CEO and Chairman Rex Wayne Tillerson had used an alias email address on the Exxon system under the pseudonym “Wayne Tracker” from at least 2008 through 2015. Continue Reading Digital Age Expands Communication but Creates Discovery, Litigation Pitfalls

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.

iStock_000056895088_FullJudge Richard J. Walsh began his opinion in Largent v. Reed with the following question: “What if the people in your life want to use your Facebook posts against you in a civil lawsuit?” With the explosive growth of social media, judges have had to confront this question more and more frequently. The answer to this question is something you’ll hear quite often from lawyers: “It depends.”

Courts generally have held that there can be no reasonable expectation of privacy in your profile when Facebook’s homepage informs you that “Facebook helps you connect and share with the people in your life.” Even when you decide to limit who can see your photos or read your status updates, that information still may be discoverable if you’ve posted a picture or updated a status that is relevant to a lawsuit in which you’re involved. The issue, then, is whether the party seeking access to your social media profile has a legitimate basis for doing so.

If you’ve updated your Facebook status to brag about your awesome new workout routine after claiming serious and permanent physical injuries sustained in a car accident—yes, that information is relevant to a lawsuit arising from that accident and will be discoverable. The plaintiff in Largent v. Reed learned that lesson the hard way when she did just that and the court ordered her to turn over her Facebook log-in information to the defense counsel. On the other hand, your Facebook profile will not be discoverable simply because your adversary decides he or she wants to go on a fishing expedition through the last eight years of your digital life.

Courts in many jurisdictions have applied the same standard to decide whether a litigant’s Facebook posts will be discoverable: The party seeking your posts must show that the requested information may reasonably lead to the discovery of admissible evidence.

For example, the plaintiff in Zimmerman v. Weis Markets, Inc. claimed that he suffered permanent injuries sustained from operating a fork lift—and then went on to post that his interests included “ridin” and “bike stunts” on the public portion of his Facebook page. The court determined that his public posts placed the legitimacy of his damages claims in controversy and that his privacy interests did not outweigh the discovery requests.

In contrast, in Tompkins v. Detroit Metropolitan Airport, the plaintiff in this slip-and-fall case claimed back injuries in connection with an accident at the Detroit Metropolitan Airport. The defendant checked the plaintiff’s publicly available Facebook photos (i.e., photos not subject to any of Facebook’s available privacy settings or restrictions), and stumbled upon photos of the plaintiff holding a small dog and also pushing a shopping cart. The court determined that these photos were in no way inconsistent with the plaintiff’s injury claims, stating that if “the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.”

The Tompkins court recognized that the plaintiff’s information was not discoverable because parties do not “have a generalized right to rummage at will through information” a person has posted. Indeed, the defendants sought the production of the plaintiff’s entire Facebook account. Their overbroad and overreaching discovery request was—and is—common among parties seeking access to their opponents’ Facebook data.

In response to these overbroad requests, courts routinely deny motions to compel the production of a person’s entire Facebook profile because such requests are nothing more than fishing expeditions seeking what might be relevant information. As the court in Potts v. Dollar Tree Stores, Inc. stated, the defendant seeking Facebook data must at least “make a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

The Tompkins and Potts decisions mark important developments in Facebook e-discovery cases. They establish that a person’s entire Facebook profile is not discoverable merely because a portion of that profile is public. In turn, Facebook’s privacy settings can provide at least some protection against discovery requests—assuming that the user has taken efforts not to display photos publicly that blatantly contradict his or her legal claims.

When it is shown that a party’s Facebook history should be discoverable, however, the party must make sure not to tamper with that history. Deactivating your Facebook account to hide evidence can invite the ire of the court. Deleting your account outright can even result in sanctions. The takeaway is that courts treat social media data no differently than any other type of electronically stored information; what you share with friends online may also be something you share with your adversary—and even the court.

Facebook: Fact or fiction? These days, courts are more and more frequently faced with disputes over whether, as part of the discovery process, a litigant should be entitled to view the opposing party’s social media posts. As we’ve discussed, some courts deciding physical and emotional injury claims have held that the photos and status updates that the plaintiffs in those cases posted to Facebook were relevant to proving or disproving those claims. But are they always? A recent column in Slate points out that some judges and experts are questioning whether a person’s social media posts are adequate reflections of his or her emotional well-being. In one 2013 case over alleged disability discrimination—the plaintiff claimed her work supervisor mocked her after she told him she’d been diagnosed with adult Attention Deficit Hyperactivity Disorder—a federal district court judge in New York held that “The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress… 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.” We at Socially Aware tend to agree with this more skeptical view of the extent to which one’s “social” life reflects one’s real life. After all, if a woman can fake an entire vacation on Facebook, many of the platform’s users are likely posting status updates and pictures that are out of sync with their actual moods.

Cutting words. Stories about people being fired or having a job offer rescinded because of their social media missteps have been around almost as long as social media itself, but they usually involve “what were they thinking?” types of behavior. We recently came across one that is a little less clear-cut. An engineer who’d just gotten job offers from Uber and Zenefits tried to crowdsource information that would help him decide between the two employers by posting what he considered to be the pros and cons of each opportunity on Quora, a Q&A social network that allows users to pose questions to the community. He said good things about both companies, but in his “cons” list for Zenefits, he wrote, “My biggest problem with Zenefits is that it isn’t a buzzword like Uber. Most people won’t know what Zenefits is (or so I think). I think that this isn’t as exciting a brand name to have on your resume when applying to the likes of Google.” Zenefits CEO and co-founder Parker Conrad saw the Quora post and responded, right on the thread: “Definitely not Zenefits (n.b.—we are revoking the questioner’s offer to work at Zenefits),” he wrote. “We really value people who ‘get’ what we do and who *want* to work here, specifically. It’s not for everyone, but there are enough ppl out there who do want to work here that we can afford to be selective.” Conrad later edited his response, deleting the part about revoking the engineer’s offer, but his decision stands: The engineer is no longer welcome at Zenefits. Reactions on Twitter went both ways, The Washington Post reported. And some commentators felt that both parties were at fault.

Here today . . . Perhaps inspired by social media users’ concerns that their posts will be used against them in the ways we’ve just described—and, in the case of Cyber Dust, billionaire investor Mark Cuban’s receipt of a subpoena for his own text messages—new disappearing messaging apps are springing up all the time. One that recently got the attention of the crowd at a tech conference in New York is the photo-sharing app Rewind. Rewind allows you to create photo timelines through which the members of your network can scroll. As a result of the scrolling feature, a whole set of photos only takes up the space of a single photo in users’ feeds. The posts vanish after 24 hours. According to Tech Crunch, by making the photos disappear, the app’s creators hope “to elicit the same sort of spontaneity as Snapchat Stories,” which have been heralded as the future of social media.

 

 

 

 

 

 

0518SAImageAs social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts.

In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff deactivated his Facebook account in an effort to be able to claim that he was no longer on Facebook. A federal court in Louisiana rejected this ploy, ordering the plaintiff to turn over all of his Facebook data to the defendant.

Here’s the background story: On May 19, 2014, Brannon Crowe sued his employer, Marquette Transportation. Crowe claimed that, in April 2014, he had an accident at work that “resulted in serious painful injuries to his knee and other parts of his body.” Crowe sued for pain and suffering, medical expenses, lost wages, past and future disability, and other special damages.

But Crowe may have unwittingly shot himself in the foot (or maybe the knee). The reason? Facebook.

Around the time Crowe suffered his injuries, he sent a Facebook message to a friend saying that he had actually hurt himself while on a fishing trip. How Marquette Transportation got its hands on the message is unclear. Nonetheless, the message led Marquette Transportation to seek other Facebook information from Crowe in discovery. On October 17, 2014, Marquette Transportation specifically requested “the Facebook history of any account(s) that [Crowe] had or has for the period commencing two (2) weeks prior to the incident in question to the present date.”

Crowe objected on several grounds. First, he claimed that his account had been “hacked.”

Then he suggested that the account associated with the fishing trip message was not his because the name on the account was “Brannon CroWe” and he does not capitalize the “W” in his last name.

Finally, Crowe claimed that he did not “presently have a Facebook account.” When questioned about that statement in a deposition, Crowe testified that, as of October 2014, he no longer had a Facebook account. Thus, Crowe was technically telling the truth; he had deactivated his account on October 21, 2014 (four days after Crowe received the discovery request to produce his Facebook account data).

Deactivating your Facebook account, however, is not the same as deleting your account. As the Court noted, “It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different and have different consequences.” Under Facebook’s terms, deactivation simply means “your profile won’t be visible to other people on Facebook and people won’t be able to search for you,” and that, upon reactivation, “[y]our profile will be restored in its entirety.” In contrast, deleting your Facebook account “means you will not ever be able to reactivate or retrieve any of the content or information you’ve added,” and there is “no option for recovery.”

As to Crowe’s claim that he was no longer on Facebook, the Court was having none of it. The court stated that “it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable.”

In short, the Court held that Crowe’s Facebook-related information was discoverable because Crowe had deactivated his account to keep the evidence from his employer—and did so only after he received a discovery request.

Crowe may have inadvertently saved himself at least some trouble with the Court by deactivating his account rather than deleting it. This duty to preserve evidence in litigation extends to social media information and is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. As soon as he placed the source of his injuries at issue, Crowe triggered the duty to preserve. Deleting relevant social media data can result in sanctions against the deleting party because the information is not recoverable, which implicates spoliation of evidence issues. In contrast, Crowe’s Facebook data was still accessible upon a simple re-login.

Even though Crowe did not delete his account, the Court was obviously unhappy with Crowe. The Court found that Crowe unnecessarily delayed the proceedings and wasted the Court’s time by deactivating his account. And, ultimately, the Court ordered Crowe to produce all information in his Facebook account to his opponent in its entirety.

This case serves as a lesson that nothing good will come from deleting or deactivating your Facebook account to hide evidence. Even if deactivating a Facebook account to conceal damaging evidence does not constitute spoliation, because the data is ultimately recoverable, courts will inevitably come down hard on efforts to conceal evidence, even ham-handed and harebrained efforts.

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we summarize the current status of various state laws restricting employer access to the personal social media accounts of applicants and employees; we explore how driving while wearing Google Glass is butting up against the law, and examine recent attempts to legislate the use of Glass on the road; we report on various approaches U.S. courts are taking to address social media-related discovery challenges and to avoid social media fishing expeditions; we take a look at the legal landscape of so-called “revenge porn” and the laws victims are leveraging (or may be able to leverage in the future) in order to fight back; we discuss how UK and European copyright law is being applied to common Internet social and business practices, including the most basic of online activities—hyperlinking; and we highlight a puzzling recent Ninth Circuit decision that has operators of online video services and copyright experts alike scratching their respective heads.

All this—plus a collection of thought-provoking statistics about social media marketing…

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.

Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.” Continue Reading U.S. Courts’ Evolving Approaches to Social Media E-Discovery

Due to the widespread popularity of social networking sites (“SNS”), courts have had to determine how the rules of discovery apply to content stored on such sites. In addressing this issue, many courts have required parties to provide opposing counsel the SNS content – such as emails and Facebook wall postings – that is relevant to the action, but have generally left SNS account owners in control of access to their accounts. For example, a Nevada district court denied a defendant’s motion to compel the plaintiff to grant the defendant access to the plaintiff’s MySpace account in order to obtain allegedly relevant communications.  Instead, the court determined that the “proper method for obtaining such information” was to serve a “properly limited” request for the production of relevant content. In a case where a plaintiff put the content of her former Facebook account and her state of mind at issue, a Connecticut district court required her to produce to the defendant all of the printouts of her account, which had been provided to her by Facebook, after an in camera review demonstrated that her initial determination of the relevancy of this information was too narrow. Although this decision may seem far-reaching, the defendant still had to rely on the plaintiff for production of the requested discovery.

Courts in New York and Pennsylvania, however, have expanded the methods of disclosure available to defendants for the discovery of SNS content. In Romano v. Steelcase, as discussed in a previous issue of Socially Aware, a New York trial court ordered the plaintiff to execute the necessary consent and authorization for the operators of Facebook and MySpace to provide the defendant with access to the plaintiff’s personal accounts. And a recent Pennsylvania decision, while relying on Romano, appears to have gone even further than the New York court.

In Zimmerman v. Weis Markets, the Pennsylvania trial court required disclosure to opposing counsel of the plaintiff’s passwords, user names and log in names in order to provide access to the non-public portions of the plaintiff’s personal Facebook and MySpace profile pages. Zimmerman, a former employee of Weis Markets, had brought an action seeking damages for injuries resulting from an on-the-job accident. He claimed both embarrassment from the subsequent scarring and that “he ha[d] sustained a permanent diminution in the ability to enjoy life and life’s pleasures.” Upon review of the public portion of Zimmerman’s personal Facebook and MySpace pages, Weis Markets discovered what it believed to be evidence that contradicted the claims – photographs taken after the accident depicting Zimmerman with his motorcycle and wearing shorts that left the scar on his leg “clearly visible.” The Zimmerman court determined that, “[b]ased on a review of the publicly accessible portions of [Zimmerman’s] Facebook and MySpace accounts, there was a reasonable likelihood of additional relevant and material information on the non-public portions of these sites.”

In response to Zimmerman’s argument that “his privacy interests outweigh[ed] the need to obtain the discovery material,” the court determined that since he had voluntarily posted all of the pictures and information on his Facebook and MySpace pages and intended to share them with other users of the sites, “he [could not] now claim he possesse[d] any reasonable expectation of privacy to prevent Weis Markets from access to such information.” Further, the court held that “[w]ith the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”

Commentators disagree on what Zimmerman ultimately means. One commentator suggests that such access is “equivalent to turning over a personal diary.” Another explains that “forcing a party to hand over his or her log-in information is not the correct result,” as it has the potential to provide the other side with access to irrelevant, non-discoverable, and/or private information. On the other hand, one commentator maintains that the policy “makes sense,” arguing that “if there is proof of relevant information contained within a social media account, then that account should be accessible by the side seeking it.” Another observes that, although these pages should be discoverable to an extent, the problem will be in deciding “where to draw the line,” and expressed concern that parties would abuse such a rule as a way to wear down the opposing side.  With such a mix of reactions, the issue is likely to become a hot topic as other courts determine whether to follow suit.

With the exponential growth in the use of social media by individuals and corporations, civil discovery questions inevitably follow.  Courts and litigants have been left to grapple with questions regarding the discoverability of data on social media sites and the appropriate scope of such discovery.  Although the law will surely evolve in this area, some trends have started to appear.  Here are four critical items to keep in mind:

First, no one seriously questions that photos, postings, messages, and other information stored on social media sites are open to discovery.  Courts have consistently allowed discovery of data on social media sites in cases presenting a range of issues.  Although, as discussed in previous issues of this newsletter, seeking to subpoena data directly from Facebook, Twitter, or other social media providers may in many instances run afoul of the Stored Communications Act, courts have allowed discovery directly from parties to litigation where such data is relevant and available.

Second, content from a party on a social media site may be discoverable even if such party has adjusted privacy settings so that only select individuals can view the content.  Simply because you believe the information is private, does not mean it is protected from discovery.

For example, in a 2010 federal court case in the Southern District of Indiana, EEOC v. Simply Storage Management, LLC, the claimants alleged that they suffered from post-traumatic stress disorder as a result of employment discrimination.  At the defendant’s request, the court ordered the claimants to produce all relevant “profiles, postings, or messages . . . and . . . applications” as well as photographs and videos on their social media sites.  The court found that “a person’s expectation and intent that her communications [on a social media site] be maintained as private is not a legitimate basis for shielding those communications from discovery.”  The court considered this simply “the application of basic discovery principles in a novel context.”

Similarly, in a New York case also from 2010, Romano v. Steelcase Inc., the court granted the defendants access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.”  The court concluded that allowing the plaintiff to “hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trail.”

Third, the fact that a party to litigation maintains profiles on social media sites does not give the opposing party carte blanche to compel broad discovery of the contents of those sites.  When it comes to social media sites, courts have been especially wary of providing a license for a fishing expedition.  If you are seeking data stored on a social media site, you will probably need to present some basis to suggest that the information is relevant.

For instance, in another recent New York case, Habib v. 116 Central Park South  Condominium, the defendant condominium in a slip and fall case sought an order compelling the eighty-year-old plaintiff “to provide authorizations for Facebook, MySpace and/or Twitter” accounts that he maintained.  The court, however, refused to compel discovery into this tech-savvy octogenarian’s social media usage, finding the defendant did “not offer a reasonable explanation as to why they believe that material information would appear on plaintiff’s social network pages [and that without] the explanation, the requested authorization is a fishing expedition.”

Likewise, in the New York case McCann v. Harleysville Insurance Company of New York, the court affirmed an order denying a motion to compel discovery into a litigant’s social media data, finding “defendant essentially sought permission to conduct a ‘fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.”  Although the universe of reported cases involving discovery from social media sites is rather small, courts have been quick to cut off litigants who simply want to snoop around the opposing party’s social media sites.

In contrast, where a party has been able to establish that the private portion of an opposing party’s social media website is relevant, courts have been willing to permit discovery.  For instance, in a Pennsylvania case from earlier in 2011, Zimmerman v. Weis Markets, Inc., the defendant in a personal injury case sought access to the non-public portions of the plaintiff’s Facebook and MySpace pages to refute the plaintiff’s claim that a forklift accident caused serious and permanent impairment to his health and ability to enjoy life.  A review of the public portions of the plaintiff’s Facebook page reflected that his interests included “ridin” [sic] and “bike stunts” and included recent photographs of the plaintiff “with a black eye and his motorcycle before and after an accident.”  Unsurprisingly, the court permitted the discovery to proceed.

Likewise, in Romano v. Steelcase Inc., the court granted a motion to compel discovery of the private portions of the plaintiff’s Facebook site where plaintiff’s “public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.”

Thus, keep in mind that courts may not look favorably on a request to engage in discovery of social media sites without some indication that they are likely to include relevant information.  If you seek to obtain discovery regarding the private portions of the other side’s social media website, you may need to establish that the discovery is warranted.  This could be established using public portions of the social media site or perhaps an affidavit from an individual who is a “friend” of the other party and who has had access to the private portions of the website.  Establishing such relevance may not be possible in all cases, but you should make every effort to present a detailed showing as to why the discovery is necessary in your case.

Finally, if you receive a demand from your adversary for information available on a social media site, merely arguing that all of the data is – or once was – publicly available may not be sufficient.  Recent case law suggests that the party maintaining the social media site has the burden of capturing and producing any relevant content, even when that content is publicly available.

In a recent trade dress infringement case in New Jersey federal district court, The Katiroll Co., Inc. v. Katiroll and Platters, Inc., the plaintiff moved for spoliation sanctions against the defendants after the individual defendant removed his Facebook profile picture, which showed the allegedly infringing trade dress, without preserving the appearance of his Facebook page prior to the change.  The defendants argued that a finding of spoliation was unwarranted because the Facebook page was public and the plaintiff could have printed any relevant evidence at any time.  The court disagreed, finding “public websites to be within the control of parties who own them” and calling the defendants’ argument “an attempt to ‘pass the buck’ to Plaintiff to print websites that Defendants are obligated to produce.”  In this same vein, because of potential hurdles in getting printouts from publicly available social media websites admitted into evidence, you may want to insist on receiving the other party’s social media data directly from that party, even if such data are publicly available.