Social Media and Its Effects

In any given moment of the day, millions of people all over the world are blogging, disseminating their activities or opinions to their followers on Twitter, sharing photos through Facebook, updating their MySpace account with recent news, or engaging in other online activity. In fact, two-thirds of the world's population that has access to the Internet visits social networking or blogging sites. In a March blog post, one of Twitter's co-founders claimed that one billion tweets are posted in the course of a week (with an average of 140 million tweets per day) and that almost 460,000 accounts on average were created per day in the previous month. LinkedIn boasts that it has over 90 million professionals covering hundreds of industries. Facebook claims that it has more than 500 million active users.

It is no overstatement then to say that social media has become a way for people to put their lives on display for all to see, attain semi-celebrity status, or generally participate in a growing cultural trend of over-sharing. Unless you have been completely oblivious to advancing technology, you probably have heard about these types of social media websites and tools or maybe even have used them in your personal life. But social media has infiltrated other aspects of life, going beyond merely a personal pastime to becoming a vital part of professional industries. Indeed, in the legal world, the role of social media has become more prevalent in the last five years. Attorneys and their clients are grappling with how this emerging technology will affect their cases. From reshaping the scope of discovery to potentially becoming evidence to support claims, one of the most significant implications of social media is how it can help shape litigation strategy by introducing new sources of information and serving as innovative tools in litigation.

What Is Social Media?

Social media uses web-based and mobile devices that allow its users to communicate interactively, either with the website or the device itself or with other users. Some of the most commonly known social media tools are social networking sites, blogs and microblogs.

Social networking sites allow users to add friends, join groups and participate in discussions. This type of social media includes the classic examples of Facebook and MySpace. Blogs (short for “web logs”) are websites that are similar to diaries or journals. They contain periodic postings by the individual or corporate blogger and often allow visitors to post comments. Finally, Twitter is the most widely known form of microblogging, a service that allows users to write brief text updates and share them with the public or a limited group. While these examples are well-known, they are only a sample of the social media currently used on a daily basis that have implications for those involved in litigation.

Implications of Social Media

Although the growth and popular use of social media introduces factors for consideration in numerous aspects of litigation strategy, we focus here on two main areas of litigation: 1) the discovery of social media; and 2) the use of social media as evidence to bolster a lawsuit.

Effect on Discovery

The Federal Rules of Civil Procedure allow liberal discovery such that “any nonprivileged matter that is relevant to any party's claim or defense” is discoverable. Fed. R. Civ. P. 26(b). Most states have a similarly broad approach to discovery. In the few years in which social media has become a factor for those involved in litigation, it has already dramatically changed the scope of discovery ' and courts are weighing in on when social media content is discoverable. As technology advances, potentially discoverable information that is generated and stored in social media sites must now be considered as part of a litigation strategy.

For instance, in a recent case where two former employees alleged sexual harassment by the former employer, the defendant sought information about the former employees that was available on social networking sites. Equal Employment Opportunity Commission v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010). Specifically,the defendant sought the public profiles of the former employees, as well as communications (including photos and videos), from their Facebook and MySpace accounts. In deciding that the defendant was entitled to some of the documents available through social media, the court first stated that content on social networking sites is not shielded from discovery simply because the content is “locked” from public view or is “private.” Id. at 434. The court ruled that content from social media sites must be produced when it is relevant to a claim or defense in the case. Id. Thus, the defendants were entitled to profiles, postings, or messages (including status updates, wall comments, causes or groups joined, activity streams, and blog entries). Id. at 436.

Similarly, in a personal injury action, the defendant sought access to the plaintiff's current and historical Facebook and MySpace accounts, including deleted information, on the grounds that certain information posted on those sites contradicted the plaintiff's claims in the suit. Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (Sup. Ct. 2010). The defendant claimed that public portions of Romano's Facebook and MySpace profiles revealed that Romano had an active lifestyle and could engage in physical activity inconsistent with her alleged injuries. The court found that the information defendant sought was relevant to its defense and could lead to admissible evidence: “It appears that 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. In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing Defendant from accessing to Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy.” Id. at 430.

In another personal injury action, McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010), the plaintiff sued for injuries allegedly sustained in an accident during a cool-down lap in a car race. The defendant sought discovery of the plaintiff's social media content after discovering that his Facebook page included comments about a fishing trip and attendance at a Daytona 500 race. In allowing the discovery, the court stated that “[c]ertainly a lack of injury and inability is relevant to their defense, and it is reasonable to assume that McMillen may have made additional observations about his travels and activities in private posts not currently available to the defendants. If they do exist, gaining access to them could help to prove either the truth or falsity of McMillen's alleged claims ' Where there is an indication that a person's social network sites contain information relevant to the prosecution or defense of a lawsuit ' access to those sites should be freely granted.” Id.

These developments have significant implications for litigation strategy when defending a lawsuit. Courts are beginning to outline guidelines for when relevant content on social media sites is discoverable. Therefore, attorneys and their clients have to keep in mind the risks and opportunities associated with social media. One important step is to evaluate early on in a case whether relevant information exists on social media sites. This includes researching whether there is information regarding the opposing party that can support its claims or defenses and seeking discovery of such information. Interrogatories, document requests, and other requests for information should be crafted with social media in mind. It is likely going to be the case that the opposing party will object to providing such information and discovery disputes will occur. It is especially important then that the requests for information be carefully made to show that the information sought is relevant and not overbroad or would jeopardize potential privacy concerns.

Even before the filing of a lawsuit, attorneys should consider advising their clients that social media content may be discoverable. For instance, companies that use blogs, Facebook pages, or other similar social media to promote themselves should be cautious about the nature of the content. Companies should also be aware that simply because the technology is private or available only for internal use will not necessarily insulate the content from discovery. These issues may not be limited to company-sponsored content, but could possibly extend to content posted by a company's employee on the employee's personal social media site.

Social Media Content As Evidence

Another implication of the popular use of social media to communicate information is that its content is becoming important evidence to support the initiation of a lawsuit. Given the volume of content posted on social media every day, this is a minefield for opportunity or pitfalls.

In a recent employment lawsuit, an information technology staffing and services firm sued three former employees and their new employer for violating non-competition, non-solicitation, and non-disclosure agreements. TekSystems, Inc. v. Hammernik, et al., 2010 WL 1624258 (D. Minn. Mar. 16, 2010). The complaint alleged that Hammernik wrongfully contacted her former TekSystems clients and coworkers and that, more interestingly, social networking activity could prove these violations. Specifically, the complaint alleged that the former employees, on behalf of their new employer, used LinkedIn to make the wrongful contacts, and referred to at least 16 LinkedIn connections with TekSystem employees. An exhibit attached to the complaint provided evidence of the alleged wrongful contact between Hammernik and a TekSystems employee through LinkedIn. The exhibit showed that Hammernik stated “Let me know if you are still looking for opportunities! I would love to have you come visit my new office and hear about some of the stuff we are working on!” The parties eventually entered into a stipulation by which TekSystems received a permanent injunction against the defendants and dismissed the action. TekSystems, Inc. v. Hammernik, et al., 2010 WL 3514960 (D. Minn. Sept. 3, 2010).

An even more recent case, filed on March 14, 2011 in the District of Minnesota, highlights this growing trend. In Spooner v. Associated Press, Case No. 11-cv-00642-JRT-JJK, an NBA referee sued the Associated Press and one if its sports writers for defamation. The claim was based on a statement published on Twitter describing an exchange between Spooner and the Minnesota Timberwolves coach, Kurt Rambis, after Spooner called a foul on a Timberwolves player. The statement that the sports writer posted on Twitter was “Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks.” According to Spooner's complaint, this implied that Spooner was engaged in game-fixing and constituted defamation per se.

Plaintiffs are not the only ones using social media content to support their positions. Another recent case suggests that even judges have resorted to social media as evidentiary support for their opinions. In Purvis v. Commissioner of Social Security, 2011 WL 741234 (D. N.J. Feb. 23, 2011), plaintiff Purvis applied for supplemental Social Security income claiming disability due to asthma, which was denied by the Commission of Social Security. An administrative law judge supported the Commission's denial by finding that Purvis's symptoms were not credible. On Purvis's appeal, the court noted that “[a]lthough the Court remands the ALJ's decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile on what is believed to be Plaintiff's Facebook page where she appears to be smoking ' If accurately depicted, Plaintiff's credibility is justifiably suspect.” Id. at *7.

Conclusion

These cases should caution those involved in litigation. One of the most important consequences of social media on litigation is that every tweet, blog posting, Facebook update and the like is potential evidence in a lawsuit. Now that plaintiffs are using social media content to bolster their claims at the pleading stage of litigation, potential corporate defendants must reevaluate their and their employees' use of social media and consider the possibility that their own seemingly innocuous use of social media could open the door to litigation.

Michael C. Lynch is a litigation partner in the New York office of Kelley Drye & Warren LLP. He can be reached at [email protected]. Lystra Batchoo is an associate in the same office, who focuses on civil litigation. She can be reached at [email protected].

In any given moment of the day, millions of people all over the world are blogging, disseminating their activities or opinions to their followers on Twitter, sharing photos through Facebook, updating their MySpace account with recent news, or engaging in other online activity. In fact, two-thirds of the world's population that has access to the Internet visits social networking or blogging sites. In a March blog post, one of Twitter's co-founders claimed that one billion tweets are posted in the course of a week (with an average of 140 million tweets per day) and that almost 460,000 accounts on average were created per day in the previous month. LinkedIn boasts that it has over 90 million professionals covering hundreds of industries. Facebook claims that it has more than 500 million active users.

It is no overstatement then to say that social media has become a way for people to put their lives on display for all to see, attain semi-celebrity status, or generally participate in a growing cultural trend of over-sharing. Unless you have been completely oblivious to advancing technology, you probably have heard about these types of social media websites and tools or maybe even have used them in your personal life. But social media has infiltrated other aspects of life, going beyond merely a personal pastime to becoming a vital part of professional industries. Indeed, in the legal world, the role of social media has become more prevalent in the last five years. Attorneys and their clients are grappling with how this emerging technology will affect their cases. From reshaping the scope of discovery to potentially becoming evidence to support claims, one of the most significant implications of social media is how it can help shape litigation strategy by introducing new sources of information and serving as innovative tools in litigation.

What Is Social Media?

Social media uses web-based and mobile devices that allow its users to communicate interactively, either with the website or the device itself or with other users. Some of the most commonly known social media tools are social networking sites, blogs and microblogs.

Social networking sites allow users to add friends, join groups and participate in discussions. This type of social media includes the classic examples of Facebook and MySpace. Blogs (short for “web logs”) are websites that are similar to diaries or journals. They contain periodic postings by the individual or corporate blogger and often allow visitors to post comments. Finally, Twitter is the most widely known form of microblogging, a service that allows users to write brief text updates and share them with the public or a limited group. While these examples are well-known, they are only a sample of the social media currently used on a daily basis that have implications for those involved in litigation.

Implications of Social Media

Although the growth and popular use of social media introduces factors for consideration in numerous aspects of litigation strategy, we focus here on two main areas of litigation: 1) the discovery of social media; and 2) the use of social media as evidence to bolster a lawsuit.

Effect on Discovery

The Federal Rules of Civil Procedure allow liberal discovery such that “any nonprivileged matter that is relevant to any party's claim or defense” is discoverable. Fed. R. Civ. P. 26(b). Most states have a similarly broad approach to discovery. In the few years in which social media has become a factor for those involved in litigation, it has already dramatically changed the scope of discovery ' and courts are weighing in on when social media content is discoverable. As technology advances, potentially discoverable information that is generated and stored in social media sites must now be considered as part of a litigation strategy.

For instance, in a recent case where two former employees alleged sexual harassment by the former employer, the defendant sought information about the former employees that was available on social networking sites. Equal Employment Opportunity Commission v. Simply Storage Management, LLC , 270 F.R.D. 430 (S.D. Ind. 2010). Specifically,the defendant sought the public profiles of the former employees, as well as communications (including photos and videos), from their Facebook and MySpace accounts. In deciding that the defendant was entitled to some of the documents available through social media, the court first stated that content on social networking sites is not shielded from discovery simply because the content is “locked” from public view or is “private.” Id. at 434. The court ruled that content from social media sites must be produced when it is relevant to a claim or defense in the case. Id. Thus, the defendants were entitled to profiles, postings, or messages (including status updates, wall comments, causes or groups joined, activity streams, and blog entries). Id. at 436.

Similarly, in a personal injury action, the defendant sought access to the plaintiff's current and historical Facebook and MySpace accounts, including deleted information, on the grounds that certain information posted on those sites contradicted the plaintiff's claims in the suit. Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (Sup. Ct. 2010). The defendant claimed that public portions of Romano's Facebook and MySpace profiles revealed that Romano had an active lifestyle and could engage in physical activity inconsistent with her alleged injuries. The court found that the information defendant sought was relevant to its defense and could lead to admissible evidence: “It appears that 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. In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing Defendant from accessing to Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy.” Id. at 430.

In another personal injury action, McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010), the plaintiff sued for injuries allegedly sustained in an accident during a cool-down lap in a car race. The defendant sought discovery of the plaintiff's social media content after discovering that his Facebook page included comments about a fishing trip and attendance at a Daytona 500 race. In allowing the discovery, the court stated that “[c]ertainly a lack of injury and inability is relevant to their defense, and it is reasonable to assume that McMillen may have made additional observations about his travels and activities in private posts not currently available to the defendants. If they do exist, gaining access to them could help to prove either the truth or falsity of McMillen's alleged claims ' Where there is an indication that a person's social network sites contain information relevant to the prosecution or defense of a lawsuit ' access to those sites should be freely granted.” Id.

These developments have significant implications for litigation strategy when defending a lawsuit. Courts are beginning to outline guidelines for when relevant content on social media sites is discoverable. Therefore, attorneys and their clients have to keep in mind the risks and opportunities associated with social media. One important step is to evaluate early on in a case whether relevant information exists on social media sites. This includes researching whether there is information regarding the opposing party that can support its claims or defenses and seeking discovery of such information. Interrogatories, document requests, and other requests for information should be crafted with social media in mind. It is likely going to be the case that the opposing party will object to providing such information and discovery disputes will occur. It is especially important then that the requests for information be carefully made to show that the information sought is relevant and not overbroad or would jeopardize potential privacy concerns.

Even before the filing of a lawsuit, attorneys should consider advising their clients that social media content may be discoverable. For instance, companies that use blogs, Facebook pages, or other similar social media to promote themselves should be cautious about the nature of the content. Companies should also be aware that simply because the technology is private or available only for internal use will not necessarily insulate the content from discovery. These issues may not be limited to company-sponsored content, but could possibly extend to content posted by a company's employee on the employee's personal social media site.

Social Media Content As Evidence

Another implication of the popular use of social media to communicate information is that its content is becoming important evidence to support the initiation of a lawsuit. Given the volume of content posted on social media every day, this is a minefield for opportunity or pitfalls.

In a recent employment lawsuit, an information technology staffing and services firm sued three former employees and their new employer for violating non-competition, non-solicitation, and non-disclosure agreements. TekSystems, Inc. v. Hammernik, et al., 2010 WL 1624258 (D. Minn. Mar. 16, 2010). The complaint alleged that Hammernik wrongfully contacted her former TekSystems clients and coworkers and that, more interestingly, social networking activity could prove these violations. Specifically, the complaint alleged that the former employees, on behalf of their new employer, used LinkedIn to make the wrongful contacts, and referred to at least 16 LinkedIn connections with TekSystem employees. An exhibit attached to the complaint provided evidence of the alleged wrongful contact between Hammernik and a TekSystems employee through LinkedIn. The exhibit showed that Hammernik stated “Let me know if you are still looking for opportunities! I would love to have you come visit my new office and hear about some of the stuff we are working on!” The parties eventually entered into a stipulation by which TekSystems received a permanent injunction against the defendants and dismissed the action. TekSystems, Inc. v. Hammernik, et al., 2010 WL 3514960 (D. Minn. Sept. 3, 2010).

An even more recent case, filed on March 14, 2011 in the District of Minnesota, highlights this growing trend. In Spooner v. Associated Press, Case No. 11-cv-00642-JRT-JJK, an NBA referee sued the Associated Press and one if its sports writers for defamation. The claim was based on a statement published on Twitter describing an exchange between Spooner and the Minnesota Timberwolves coach, Kurt Rambis, after Spooner called a foul on a Timberwolves player. The statement that the sports writer posted on Twitter was “Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks.” According to Spooner's complaint, this implied that Spooner was engaged in game-fixing and constituted defamation per se.

Plaintiffs are not the only ones using social media content to support their positions. Another recent case suggests that even judges have resorted to social media as evidentiary support for their opinions. In Purvis v. Commissioner of Social Security, 2011 WL 741234 (D. N.J. Feb. 23, 2011), plaintiff Purvis applied for supplemental Social Security income claiming disability due to asthma, which was denied by the Commission of Social Security. An administrative law judge supported the Commission's denial by finding that Purvis's symptoms were not credible. On Purvis's appeal, the court noted that “[a]lthough the Court remands the ALJ's decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile on what is believed to be Plaintiff's Facebook page where she appears to be smoking ' If accurately depicted, Plaintiff's credibility is justifiably suspect.” Id. at *7.

Conclusion

These cases should caution those involved in litigation. One of the most important consequences of social media on litigation is that every tweet, blog posting, Facebook update and the like is potential evidence in a lawsuit. Now that plaintiffs are using social media content to bolster their claims at the pleading stage of litigation, potential corporate defendants must reevaluate their and their employees' use of social media and consider the possibility that their own seemingly innocuous use of social media could open the door to litigation.

Michael C. Lynch is a litigation partner in the New York office of Kelley Drye & Warren LLP. He can be reached at [email protected]. Lystra Batchoo is an associate in the same office, who focuses on civil litigation. She can be reached at [email protected].