Social media is changing the way lawyers work. There are judges on Twitter, law firms advertising on Facebook, and, digital-era communications like emojis working their way into court opinions. But, most importantly, social media has created a treasure trove of information that could be potentially relevant to litigation.
That means your smoking gun is much more likely to be a Facebook DM or Instagram photo as, well, a smoking gun. It’s no wonder, then, that more than 50 percent of attorneys report seeing an increase in discovery around social media and mobile devices in their practice. Yet when it comes to actually conducting such discovery, social media evidence can pose some unique challenges.
The availability of discovery into social media evidence can be significantly impacted by your venue and jurisdiction. In the federal courts, the standard is fairly straightforward and consistently applied: if social media evidence is relevant, nonprivileged, and proportional to the needs of the case, then it is discoverable.
Some state courts, however, have developed more complicated approaches to the discoverability of social media evidence. Until very recently, for example, New York State courts would frequently limit discovery of social media evidence to information that users shared publicly—a restriction on discovery not placed on other forms of personal information, such as diaries or email.
Such rulings created a body of case law unique to social media, where, in the words of the New York State Court of Appeals, the state’s highest court, practitioners seeking nonpublic social media information would need to “first unearth some item from the plaintiff’s publicly available social media postings that tends to conflict with or contradict the plaintiff’s claims.” Even then, there would be in-camera review to ensure all requested material was relevant. This was the case despite New York State Civil Practice Law and Rules 3101(a), which states “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.”
In a recent case, however, the New York State Court of Appeals explicitly rejected “the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”
“For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” Forman v. Henkin
In Forman v. Henkin, the court returned to the more permissive discovery standard embodied in CPLR 3101(a), giving a personal injury defendant access to a plaintiff’s Facebook photos. Defense counsel was granted:
Interestingly, the court did not order disclosure of the content of any of the plaintiff’s written Facebook posts, from before or after the accident.
The case arose when Kelly Forman fell off Mark Henkin’s horse, allegedly suffering spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. Although she previously maintained an active Facebook account before the accident—posting “a lot” of photographs showing her active lifestyle—she purportedly deactivated the account about six months after the accident, claiming her injuries made her reclusive and that using a computer and composing social media posts became more cumbersome.
Naturally, Henkin and his counsel wanted access to that account, both to determine the validity of Forman’s claims and to uncover evidence of any change following the accident. After all, it’s not unheard of for a party’s contentions to be undermined by social media evidence.
In its review of the request, the court set aside existing case law holding that discovery of social media data should be subject to special rules, instead returning to good ol’ New York CPLR 3101(a).
“For purposes of disclosure,” the court held, “the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” The court laid out specific circumstances for courts to consider:
As with all discovery, the court reminded us, judges “should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.”
Given the parameters outlined by the New York Court of Appeals, how do practitioners determine relevance, and, more importantly, how do they craft arguments to get what they’re looking for?
Start by casting a reasonably sized net. As the Sedona Conference’s recent Primer on Social Media illustrates, courts aren’t going to be too receptive to efforts to obtain “all” social media postings or “entire” account data, recognizing the entire contents of a social media source aren’t going to be relevant in most cases.
Therefore, requests for social media data must be narrowly targeted and well-crafted to both gather information that might be relevant. To convince courts the request is limited enough to protect parties’ privacy interests, you need to know what to ask for, and what to leave aside. That distinction will depend on the facts, circumstances, and legal issues in each individual case.
"Requests for social media data must be narrowly targeted and well-crafted to both gather information that might be relevant."
First, you need to know what social media your clients and their opponents use and assess whether those sources of information may contain evidence relevant to the case. This requires some familiarity with how different platforms function, and why a client might tweet something they don’t put on Facebook, or why they’d add to their Instagram Stories instead of posting the same content permanently to their feed.
Second, consider how social media evidence can reflect a party’s physical or mental state, verify their geographic location at particular times, or speak to their identity. Beyond what social media data can say about the parties involved, there is also what that data can say about other aspects of the case, like damages or whether a party is litigating in good faith.
"Consider how social media evidence can reflect a party’s physical or mental state, verify their geographic location at particular times, or speak to their identity."
Finally, while the internet can create a permanent record, certain types of social media evidence can be more easily deleted, complicating later access. Practitioners should take steps early to preserve both the evidence they are seeking and the evidence they may be compelled to provide. Attorneys may need to issue a preservation subpoena to a non-party social media company, and at the same time take reasonable steps to preserve their own clients’ social media content once a duty to preserve has been triggered.
Social Media Evidence and the Stored Communications Act
Could some of these battles over social media evidence be avoided simply by subpoenaing information directly from social media companies themselves? Unfortunately, obtaining such evidence is rarely so straightforward.
One of the biggest obstacles to getting data from social media companies comes from the federal Stored Communications Act, which prohibits an “entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”
SCA restrictions vary depending on whether a service is considered an “electronic communication service” or a “remote computing service”. An electronic communication service, for example, may be prohibited from disclosing communications that have not yet been delivered to a user or which are stored for backup. (Courts are split as to whether delivered messages are considered “stored for backup.”) A remote computing service may face even more restrictions on the information that can be disclosed.
Further, while the SCA does allow service providers to disclose data in response to criminal warrants, no exception currently exists for civil subpoenas. Not only that, but the SCA creates a civil cause of action against service providers that violate it.
Going to the Source—the User
So where does that leave attorneys seeking social media evidence?
Probably seeking from a source other than the social media company. Instead, start with the source. Request social media posts via discovery requests to the user or subscriber, or request their consent to obtain them from the service provider. You may also have better luck seeking an order from the court compelling the user to undertake the necessary steps to provide the requested social media evidence.
In either case, it’s clear that, in more and more cases today, social media evidence simply cannot be ignored. Not only do practitioners need to know what social media evidence to look for and how to get it, they also need the technology to efficiently compile, sort, and review that data. And discovery platforms that can effectively glean the most relevant evidence out of giga- or terabytes of social media data can make that process much less painful.