Making Your Case with Social Media In Litigation

“The Internet's not written in pencil, Mark. It's written in ink.”

In “The Social Network” ' admittedly a fictionalized account of the founding of Facebook ' this was a hard lesson for founder Mark Zuckerberg to learn.

And so it is with litigants and their lawyers. Every week, it seems, another opinion is issued in which social media evidence fundamentally changes the nature of a case. Last September, for example, judges in personal injury cases in both New York and Pennsylvania compelled discovery of social media evidence that suggested plaintiffs were not nearly as incapacitated as they alleged. See, Romano v. Steelcase, 2010 WL 3703242 (N.Y.Sup. Suffolk Co. 2010); McMillen v. Hummingbird Speedway, Inc., No. 113 ' 2010 CD (Pa. Common Pleas Jefferson Co. 2010).

Then, in January, after winning a plaintiff's verdict in a gender discrimination case, a law firm was subpoenaed for social media posts containing information about time spent on the case, market rates, and skill in handling the instant litigation ' an attempt to undermine its request for fees. See, Muniz v. United Parcel Service, Inc., No. C-09-01987-CW (DMR) (N.D. Cal. 2011). Although the court found the information irrelevant and declined to compel its production, the motion to quash likely was not a battle the law firm wanted ' or expected ' to fight.

And in February, in a case that shows online naivet' extends also to jurors, a Sacramento judge threatened to jail a juror if he didn't give Facebook permission to disclose messages he posted during the trial of several alleged gang members. According to an Associated Press report, the juror characterized the proceedings as “boring” in one post, and defense attorneys requested access to other posts to see if he was influenced by outside forces.

In short, social media has come crashing into the courtroom. And along with this newer form of evidence come questions about how to best collect, preserve and use it.

Cases and Litigation Phases
In Which to Use Social Media

Although social media is an obvious source of evidence in criminal, divorce and custody cases, it is increasingly being used in litigation involving large corporations, and, as the cases above show, it can be utilized in products liability and personal injury cases. Social media sites are also fertile ground in employment cases, whether to refute claims of emotional distress arising from discrimination (see, EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223-WTL-DML (S.D. Ind. 2010)), to suggest a plaintiff did not work as much overtime as he claimed (see, Mancuso v. Florida Metropolitan University, Inc., WL 310726 (S.D. Fla. 2011)) or to show violations of a non-solicit agreement, as a plaintiff recently alleged in a case involving LinkedIn communications (see, TEKsystems, Inc. v. Hammernick, No 0:10-cv-00819 (D.C. Minn. 2010)).

In addition, social media sites are not only rife with copyright and other intellectual property infringements, but can be used to show evidence of actual confusion in a trademark case, to sound out the reputation of a plaintiff in a libel case, or simply to evaluate the credibility or wealth of your adversary ' or the disposition of your judge or jurors. In other words, the value of social media should not be overlooked regardless of the nature of the case.

And it's never too early to start poking around. As soon as counsel contemplates suing or believes his or her client may be sued, he or she should investigate the opponent's online presence. Once litigation commences, litigants may restrict their privacy settings ' or remove the sites altogether ' making it much more difficult to readily access potentially game-changing evidence.

Of course, once discovery commences, lawyers can employ more formal methods of fact gathering and move to compel that evidence if met with opposition. Interrogatories should seek to identify an opponent's screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, counsel should be prepared to talk about social media and its production format at a Rule 26(f) or other discovery conferences.

Finally, before offering such evidence in court, counsel should be prepared to respond to objections related to relevance, hearsay and authentication. With regard to the latter, the threshold for admissibility is low, and can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that Web site printouts need not be authenticated by the site's owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party's, and printed what she saw on the screen. See, Jarritos, Inc. v. Los Jarritos, No. C 05-02380 JSW (N.D. Cal. 2007).

Collecting and Preserving
Social Media Evidence

Clearly, social media content can be powerful evidence, but there are challenges in collecting and preserving it. To begin with, there are ethical issues to consider, especially in the investigation stage, before litigation commences and discovery mechanisms are available. In a September 2010 opinion, the New York State Bar Association opined that a lawyer may access another party's social media site “as long as the party's profile is available to all members in the network and the lawyer neither 'friends' the other party nor directs someone else to do so.” N.Y.S.B.A. Committee on Professional Ethics, Opinion 843 (9/10/10).

Likewise, a 2009 opinion from the Philadelphia Bar Association made clear that although an attorney could attempt to “friend” an adverse witness, he could not hire a third party (whose name was unknown to the witness) to do it for him, as this would violate prohibitions on conduct involving dishonesty, fraud, deceit or misrepresentation. Notably, the opinion involved an adverse witness, not an adverse party. “Friending” a represented party likely would raise issues of its own. See, The Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (March 2009).

Once social media content is identified, it can be difficult to collect and preserve. Subpoenaing Facebook or MySpace may seem an obvious choice, but it's not likely to render results, as shown in Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (C.D. Cal. 2010). In that case, defendants served subpoenas on Facebook and MySpace, but plaintiff moved to quash them on grounds they violated the Stored Communications Act. See, “How Private Is Facebook Under the SCA?” in the November 2010 issue of Internet Law & Strategy, available at www.ljnonline.com/issues/ljn_internetlaw/8_11/news/154420-1.html. The court agreed, and held that private-messaging functions on Facebook and MySpace were no different than e-mail, and that the sites did not have to produce the messages; in fact, they were prohibited from doing so.

The decision confirms that the best way to get the data is directly from the user through the discovery process. Facebook, at least, allows page owners to download all their data by following the instructions (at https://www.facebook.com/download/?h=899a3e5cbf8e35cf3ea327246edd9baf), rendering highly questionable any objection to a request for such information on grounds it is overly burdensome. Another option is to include a “social media release,” akin to a medical release, in document requests and provide the signed release to the social media site when requesting an adverse party's data. If these options are not available, counsel may be limited to the imperfect ' and sometimes time-consuming ' options of printing or by capturing data on video or via PDF. Until better technology is developed, counsel may simply have to be content with making a good-faith effort to “do their best” when it comes to collecting social media evidence.

Implicit in this discussion is that social media can be used not only against one's adversary but also against one's own client. Thus, counsel need to be prepared to protect their clients from spoliation claims, using the collection and preservation options discussed above. Counsel should call out relevant social media content in litigation holds, and if it is a source of relevant information, discuss with opposing counsel the preferred production format sooner rather than later.

Social Media As the New e-Mail

Just a few months ago, Gartner predicted that social media will replace e-mail as the primary vehicle for interpersonal communications for 20% of business users by 2014. When coupled with the logistical challenges of collection and preservation ' and the relatively unsettled state of the law ' that's a daunting prospect.

But take heart. Everyone is learning as they go. As Justice Breyer recently commented in a speech at Vanderbilt University: “If I'm applying the First Amendment, I have to apply it to a world where there's an [I]nternet, and there's Facebook, and there are movies like ' 'The Social Network,' which I couldn't even understand.”

“The Internet's not written in pencil, Mark. It's written in ink.”

In “The Social Network” ' admittedly a fictionalized account of the founding of Facebook ' this was a hard lesson for founder Mark Zuckerberg to learn.

And so it is with litigants and their lawyers. Every week, it seems, another opinion is issued in which social media evidence fundamentally changes the nature of a case. Last September, for example, judges in personal injury cases in both New York and Pennsylvania compelled discovery of social media evidence that suggested plaintiffs were not nearly as incapacitated as they alleged. See, Romano v. Steelcase, 2010 WL 3703242 (N.Y.Sup. Suffolk Co. 2010); McMillen v. Hummingbird Speedway, Inc., No. 113 ' 2010 CD (Pa. Common Pleas Jefferson Co. 2010).

Then, in January, after winning a plaintiff's verdict in a gender discrimination case, a law firm was subpoenaed for social media posts containing information about time spent on the case, market rates, and skill in handling the instant litigation ' an attempt to undermine its request for fees. See, Muniz v. United Parcel Service, Inc. , No. C-09-01987-CW (DMR) (N.D. Cal. 2011). Although the court found the information irrelevant and declined to compel its production, the motion to quash likely was not a battle the law firm wanted ' or expected ' to fight.

And in February, in a case that shows online naivet' extends also to jurors, a Sacramento judge threatened to jail a juror if he didn't give Facebook permission to disclose messages he posted during the trial of several alleged gang members. According to an Associated Press report, the juror characterized the proceedings as “boring” in one post, and defense attorneys requested access to other posts to see if he was influenced by outside forces.

In short, social media has come crashing into the courtroom. And along with this newer form of evidence come questions about how to best collect, preserve and use it.

Cases and Litigation Phases
In Which to Use Social Media

Although social media is an obvious source of evidence in criminal, divorce and custody cases, it is increasingly being used in litigation involving large corporations, and, as the cases above show, it can be utilized in products liability and personal injury cases. Social media sites are also fertile ground in employment cases, whether to refute claims of emotional distress arising from discrimination (see, EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223-WTL-DML (S.D. Ind. 2010)), to suggest a plaintiff did not work as much overtime as he claimed (see, Mancuso v. Florida Metropolitan University, Inc., WL 310726 (S.D. Fla. 2011)) or to show violations of a non-solicit agreement, as a plaintiff recently alleged in a case involving LinkedIn communications (see, TEKsystems, Inc. v. Hammernick, No 0:10-cv-00819 (D.C. Minn. 2010)).

In addition, social media sites are not only rife with copyright and other intellectual property infringements, but can be used to show evidence of actual confusion in a trademark case, to sound out the reputation of a plaintiff in a libel case, or simply to evaluate the credibility or wealth of your adversary ' or the disposition of your judge or jurors. In other words, the value of social media should not be overlooked regardless of the nature of the case.

And it's never too early to start poking around. As soon as counsel contemplates suing or believes his or her client may be sued, he or she should investigate the opponent's online presence. Once litigation commences, litigants may restrict their privacy settings ' or remove the sites altogether ' making it much more difficult to readily access potentially game-changing evidence.

Of course, once discovery commences, lawyers can employ more formal methods of fact gathering and move to compel that evidence if met with opposition. Interrogatories should seek to identify an opponent's screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, counsel should be prepared to talk about social media and its production format at a Rule 26(f) or other discovery conferences.

Finally, before offering such evidence in court, counsel should be prepared to respond to objections related to relevance, hearsay and authentication. With regard to the latter, the threshold for admissibility is low, and can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that Web site printouts need not be authenticated by the site's owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party's, and printed what she saw on the screen. See, Jarritos, Inc. v. Los Jarritos, No. C 05-02380 JSW (N.D. Cal. 2007).

Collecting and Preserving
Social Media Evidence

Clearly, social media content can be powerful evidence, but there are challenges in collecting and preserving it. To begin with, there are ethical issues to consider, especially in the investigation stage, before litigation commences and discovery mechanisms are available. In a September 2010 opinion, the New York State Bar Association opined that a lawyer may access another party's social media site “as long as the party's profile is available to all members in the network and the lawyer neither 'friends' the other party nor directs someone else to do so.” N.Y.S.B.A. Committee on Professional Ethics, Opinion 843 (9/10/10).

Likewise, a 2009 opinion from the Philadelphia Bar Association made clear that although an attorney could attempt to “friend” an adverse witness, he could not hire a third party (whose name was unknown to the witness) to do it for him, as this would violate prohibitions on conduct involving dishonesty, fraud, deceit or misrepresentation. Notably, the opinion involved an adverse witness, not an adverse party. “Friending” a represented party likely would raise issues of its own. See, The Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (March 2009).

Once social media content is identified, it can be difficult to collect and preserve. Subpoenaing Facebook or MySpace may seem an obvious choice, but it's not likely to render results, as shown in Crispin v. Christian Audigier , 717 F. Supp. 2d 965 (C.D. Cal. 2010). In that case, defendants served subpoenas on Facebook and MySpace, but plaintiff moved to quash them on grounds they violated the Stored Communications Act. See, “How Private Is Facebook Under the SCA?” in the November 2010 issue of Internet Law & Strategy, available at www.ljnonline.com/issues/ljn_internetlaw/8_11/news/154420-1.html. The court agreed, and held that private-messaging functions on Facebook and MySpace were no different than e-mail, and that the sites did not have to produce the messages; in fact, they were prohibited from doing so.

The decision confirms that the best way to get the data is directly from the user through the discovery process. Facebook, at least, allows page owners to download all their data by following the instructions (at https://www.facebook.com/download/?h=899a3e5cbf8e35cf3ea327246edd9baf), rendering highly questionable any objection to a request for such information on grounds it is overly burdensome. Another option is to include a “social media release,” akin to a medical release, in document requests and provide the signed release to the social media site when requesting an adverse party's data. If these options are not available, counsel may be limited to the imperfect ' and sometimes time-consuming ' options of printing or by capturing data on video or via PDF. Until better technology is developed, counsel may simply have to be content with making a good-faith effort to “do their best” when it comes to collecting social media evidence.

Implicit in this discussion is that social media can be used not only against one's adversary but also against one's own client. Thus, counsel need to be prepared to protect their clients from spoliation claims, using the collection and preservation options discussed above. Counsel should call out relevant social media content in litigation holds, and if it is a source of relevant information, discuss with opposing counsel the preferred production format sooner rather than later.

Social Media As the New e-Mail

Just a few months ago, Gartner predicted that social media will replace e-mail as the primary vehicle for interpersonal communications for 20% of business users by 2014. When coupled with the logistical challenges of collection and preservation ' and the relatively unsettled state of the law ' that's a daunting prospect.

But take heart. Everyone is learning as they go. As Justice Breyer recently commented in a speech at Vanderbilt University: “If I'm applying the First Amendment, I have to apply it to a world where there's an [I]nternet, and there's Facebook, and there are movies like ' 'The Social Network,' which I couldn't even understand.”