140 Characters or Less: Overcome Objections to and Preserve Social Media Discovery
“Think about what people are doing on Facebook today. They’re keeping up with their friends and family, but they’re also building an image and identity for themselves, which in a sense is their brand. They’re connecting with the audience that they want to connect to. It’s almost a disadvantage if you’re not on it now.” — Mark Zuckerberg, Facebook, Inc., CEO
Mark Zuckerberg’s words should resound deafeningly with the defense bar. In today’s social media era, defense counsel is doing their client a disservice if scouring social media for relevant content is not part of their defense strategy. With over half the United States’ population sharing content on two or more social networking websites according to the Pew Research Center, social media can have serious implications in litigation. Content posted on social media presents a unique opportunity to attack claims. Allegations of physical limitations, pain, and suffering can be dispelled as quickly as a photo can be posted on Instagram.
While social media is an established part of everyday life, it is still relatively novel in the context of litigation. Courts are actively determining social media’s role within the framework of traditional discovery. Trial court opinions from Connecticut, Indiana, Colorado, Pennsylvania, and Georgia indicate a trend of finding social media content to be discoverable. These courts recognize the insight social media provides into plaintiffs’ daily lives and states of mind, which can support or contradict personal injury claims. See, e.g., Bass v. Miss Porter’s School, No. 3:08CV1807, 2009 WL 3724968 (D. Conn. Oct. 27, 2009). However, courts are reluctant to compel production of social media content absent a factual predicate for the relevancy of the evidence. See McCann v. Harleysville Ins. Co. of New York, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010).
Aware of the wealth of information available, plaintiffs may go to great lengths to prevent access to social media. Relevancy is a common objection to social media discovery. While defense counsel can freely access publicly available content, some courts require a showing of relevancy before allowing access to social media pages with higher privacy settings. See, e.g., Martin v. Allstate Fire & Casualty Ins. Co., Case ID 1104022438 (Phil. C.P. Dec. 13, 2011) (Manfredi, J.) (finding no threshold showing of relevancy where the defendant never asked in deposition how the plaintiff used Facebook or whether she commented on or posted pictures of her injuries). However, as recognized by United States District Court for the Southern District of Georgia, Waycross Division, in Bryant v. Perry, civil action no. CV509-060, “It is reasonable to infer that [a plaintiff’s] social networking site may contain content relevant to how or whether [her] quality of life has changed since the incident.” Consequently, establishing a personal injury plaintiff’s consistent use of social media to document daily activities prior and subsequent to the subject event(s) is critical to overcoming a relevancy objection and gaining access to “private” social media content. Similarly, defense counsel should seek to establish whether a plaintiff utilized social media to discuss the subject event(s), injuries, medical treatment, or other items central to pending litigation.
Overly broad and unduly burdensome objections are also common. Overly broad objections may be overcome by limiting production to content posted during a specified date range. See EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434-36 (S.D. Ind. 2010) (limiting social media production to a time certain). Posts concerning or addressing the subject event(s), the plaintiff’s claims, or pending litigation are relevant regardless of posting date and should be produced even if falling outside the specified date range. Defense counsel can also avoid unduly burdensome objections by including easy-to-follow download instructions with written discovery (discussed below).
Privilege and privacy objections are also favored by the plaintiff’s bar. Courts have found there is no “social media privilege,” especially between “Friends” (and even if a privilege existed, it would be waived once the information was shared with others). See, e.g., McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010). Privacy objections are also arguably disingenuous as the purpose of social media is to share information with others. Indeed, by voluntarily posting social media content, a plaintiff consents to sharing the information publically and, despite available privacy settings, has no control over subsequent dissemination of posted content. See Largent v. Reed, 2011 WL 5632688 (Pa. Com. Pl. Nov. 8, 2011); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011). Various social networking sites also require users to consent to privacy policies emphasizing content can become publicly available. Moreover, analogous to medical records, by placing their physical and emotional condition at issue, plaintiffs are arguably prohibited from asserting privacy as a bar to social media discovery.
In addition to serving as a common objection, privacy settings create a potential roadblock to preserving social media content. Privacy settings can prove particularly challenging on Facebook or Twitter, where user access can be limited at the click of a mouse, thereby preventing defense counsel from accessing critical insight into plaintiffs’ activities. However, as the Supreme Court of New York recently recognized, restricting the general public’s access to content through privacy settings cannot act as a shield to discovery. Melissa G v. North Babylon Union Free School Dist., 6 N.Y.S.3d 445, 448 (2015). Courts have responded to privacy settings barriers by mandating the acceptance of a “friend” or “follow” request by plaintiffs after an in-camera review of the profile in question or by requiring the plaintiff to produce a downloaded copy of their social media content regardless of privacy settings. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010); Bass, supra.
Another more drastic challenge comes through new social media websites and applications beyond Facebook, Twitter, and Instagram. Some outlets allow for users to manually download each individual post. This is the case for Vine, an application allowing users to create and share six-second videos. Users can save and download each individual video posted on a Vine account by accessing the relevant account through Vine’s website and using the “Save As” function.
Difficulties also arise with the Snapchat and Yik Yak applications, which do not have a web-based component permitting a manual download. Snapchat is an application allowing users to take, send, and share photographs and videos. However, “Snaps” disappear and are deleted from the sender’s mobile device after a specified amount of time denominated in seconds. Snaps posted to a user’s “Story,” which allows users to add Snaps together to create a narrative, are available for 24-hours before disappearing. Snaps may be saved if the recipient takes a “screenshot” of the image before it is deleted. Yik Yak is an anonymous message board application that allows users to connect based on location. The application does not save all “Yaks” created by an individual user. Snapchat and Yik Yak do permit users to automatically save all content to cloud-based storage; however, users must manually select a setting allowing the content to be saved digitally to the cloud. Many will not make this election, which makes any backlogged content on Snapchat or Yik Yak unrecoverable.
Spoliation of social media content is sanctionable. See Frank Gatto v. United Air Lines, 2013 WL 1285285 (D.N.J. March 25, 2013) (imposing spoliation sanctions where the plaintiff’s Facebook account was deleted). Thus, social media should be addressed in a litigation hold letter.
As discussed above, unduly burdensome objections have been overcome where defense counsel provided step-by-step downloading instructions. Below are suggested standard discovery instructions for preserving data for some of today’s more popular social media networks:
To create a zip file containing your Facebook profile, please sign on to your Facebook account and click the downward facing arrow on the top right corner of your Facebook page. Select “Settings” from the drop-down menu that appears. On the newly opened screen, select “Download a copy of your Facebook data.” Follow the on-screen prompts and provide your Facebook password to start the download process. Facebook will compile a zip file and email a notification to you with a link allowing you to download the Facebook file.
Photographs contained on or electronically tagged to your Facebook webpage must be downloaded individually. To do this, you must open each picture individually, right click on the picture and save it on a CD or USB drive.
To obtain your Twitter archive, go to the “Settings” area and look for the new “Your Twitter archive” feature. A link will be emailed to you that leads to a page within Twitter where you can complete the download. After clicking download, a zip file will be downloaded. When you open the file, a readme file with instructions will appear.
To download a copy of your Instagram account, please visit http://instaport.me/export and sign into the Instagram account. Follow the prompts to authorize access to the account’s information. Under “export options,” download all photographs and select “include videos as well.” A zip file titled “Instagram____” will be downloaded with the date of the download.
This Article was also published by Defense Research Institute. Click here to review the article at DRI.
Jason W. Hammer is a partner with the law firm of Lueder, Larkin & Hunter, LLC in Atlanta, Georgia, where he practices primarily in general liability litigation, including everything from basic car wrecks to complex wrongful death cases. Jason can be reached at jhammer@luederlaw.com.
Jefferson M. Starr is an associate with the law firm of Lueder, Larkin & Hunter, LLC in Atlanta, Georgia, where he practices primarily in general liability defense and commercial litigation. Jeff can be reached at jstarr@luederlaw.com.