Social Media as Sword and Shield
By: Blair J. Cash, In Transit: The Newsletter of the Trucking Law Committee, Volume 19, Issue 1, 2016
We are kidding ourselves if we think it does not happen. After being involved in an accident with a commercial motor vehicle, one of the first tasks for an injured party, a family member, or a plaintiffs’ attorney is to investigate the alleged at-fault driver and company involved in the accident. Internet searches often yield information regarding a company web page, customer reviews, and other materials available for public consumption. The next step often includes a search of social media platforms such as Facebook, Twitter, and Instagram. If a driver, or any company employee, has a public profile, it is all too easy for a plaintiff or someone on their behalf to take a screenshot and save whatever they find on these social media platforms, preserving it for use in an eventual personal injury claim. For several years now, defense attorneys all over the country have sought similar materials with plaintiffs. When pressed by plaintiffs’ counsel who do not want to provide that information regarding their client’s use of social media, we cite to new case law supporting a defendant’s right to discovery into these topics.
Social Media Sword
In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), a New York judge ordered production of the plaintiff’s entire Facebook and MySpace profiles, including all private pages. The court pointed out that the privacy policies for the sites advise users that there is no expectation of privacy. The plaintiff was ordered to execute a consent form authorizing Facebook and MySpace to provide the defendant with access to the pages. In EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434-36 (S.D. Ind. 2010), the court addressed the relevance of the discovery of social media and found that given plaintiff’s claims of emotional distress, “the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)” for a certain time period that reveal, refer or relate to any emotion, feelings, or mental state as well as photographs and videos posted on the plaintiff’s profiles that reveal their emotional or mental status. In Bryant v Perry, civil action no.: CV509-060, the United States District Court for the Southern District of Georgia, Waycross Division, granted a defendant’s motion to compel discovery requesting an inspection of the plaintiff’s Facebook page and production of Facebook content. The court found: “that there are likely to be photographs, wall postings, or comments on plaintiff’s Facebook page that could be relevant to the claims and defenses of both parties . . . .It is reasonable to infer that his social networking site may contain content relevant to how or whether his qualify of life has changed since the incident.”
In response, the plaintiffs’ bar argues that defendants may not go on a fishing expedition and there must be some threshold showing of relevance before allowing a defendant unfettered access to a plaintiff’s social media profile. For example, in Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012), the trial court held that discovery into a plaintiff’s Facebook profile would not be allowed absent some “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” The Tompkins Court stressed that because the plaintiff was not making a claim of permanent injury, photographs contained in the non-public portion of her Facebook account were not discoverable. Id. at 389. The Court added a caveat that if the plaintiff’s public profile page had “contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.” Id.
Social Media Shield
What happens when plaintiff’s counsel has already obtained material from your driver’s Facebook, Twitter, Instagram, or other social media outlets due to their public nature? How do you then keep this material away from a jury, particularly when plaintiff’s counsel seeks to use this material to paint a picture of your driver as more concerned with “likes” and “retweets” than with his safety behind the wheel? One of the easiest, and cheapest, discovery methods is a simple Internet search that could yield your driver’s social media profile if his or her profile is available for public consumption. The same can be said for all employees of the company. Even if discovered, all is not lost.
First and foremost, the party offering the social media content and other postings must authenticate the material. See, e.g., United States v. Hassan, 742 F.3d 104 (4th Cir. 2014); United States v. Vayner, 769 F.3d 125, 127 (2d Cir. 2014) (reversing admission of social-media profile that was not properly authenticated). Unless properly authenticated and certified, a trial court’s admission of a defendant’s social media content is reversible error. However, authentication of a defendant driver’s social media content may be as simple as having a witness identify screenshots of a defendant’s Facebook page by testifying that he or she viewed the page, printed the page, and identified the defendant driver in photographs seen on the page. See Burgess v. State, 292 Ga. 821, 824, 742 S.E.2d 464 (holding that a printout from a screen shot of the defendant’s profile page from a social media website was properly authenticated by the officer who printed the document and testified that the defendant used the nickname displayed on the profile page and that the page contained photographs of the defendant).
Second, even if authenticated, the social media content offered must be relevant under FRE 401 and 403. As demonstrated above, the relevancy threshold for the use of a plaintiff’s social media content is more easily met when the plaintiff is claiming loss of enjoyment of life, permanent impairment, and other items of general pain and suffering damages. Plaintiffs must prove that a social media posting by a defendant driver has a tendency to make a fact more or less probable than it would be without the evidence and the fact must be of consequence to the action at hand. FRE 401; see Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116 (E.D.N.Y. 2013) (holding that “routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [the plaintiff’s] claim for emotional distress damages”). The same arguments and case law used by the Plaintiffs’ Bar as a shield against discovery into their client’s social media usage may be used to protect our defendant drivers here. Just because a driver posts an update of their late night dinner after being on the road or the driver tweets out a photograph of bad weather slowing down his delivery time does not prove the issue of the driver’s alleged negligence on a particular date and time. However, case involving claims of punitive damages and/or negligent supervision and/or retention frequently involve allegations that a driver was fatigued, distracted, or in a hurry. Any statements by a driver on social media platforms related to these claims could be admissible at trial as an admission against interest under FRE 801(d)(2). Keeping drivers and other employees off social media, or at least restricting the public nature of their profiles, should be done to eliminate the potential use of this information at trial.
Aside from the discoverability issues surrounding a defendant driver’s social media profiles, if discovery into these areas is unavoidable, authentication, hearsay, and relevance rules serve as shields for defense lawyers seeking to keep a driver’s social media activity out of the spotlight at trial. Plaintiffs’ lawyers even publish articles in trial treatises advising other plaintiffs’ lawyers of the dangers and pitfalls of failing to monitor their client’s social media usage. In doing so, trucking defense lawyers might do well to follow the advice of some plaintiffs’ lawyers in advising their drivers to do the following: (1) archive the driver’s entire social media history on all social media platforms to ensure the material is available for production if ordered by a Court; (2) advise your driver to set his or her privacy restrictions to the maximum allowed setting, even instructing them to make any profile pictures anonymous and removing their names from search engines on Facebook, Twitter, Instagram, and other social media outlets; and (3) instruct your driver to not make any comments about the accident at issue, his or her job as a truck driver, and any issues related to his or her employment with any trucking companies or motor common carriers. Plaintiffs’ attorneys are warning each other about the risk of spoliation of evidence if their clients delete information on their social media profiles. Therefore, we can be assured they will seek any and all available spoliation sanctions against our drivers if it appears as though the driver has deleted or altered social media content in any way after an accident. To be safe, counseling drivers and other employees of our clients about the pitfalls of public social media content at the outset of a claim is the most secure way to avoid a battle waged on social media at trial.
Blair J. Cash is a partner in the Alpharetta office of Lueder, Larkin & Hunter where his practice focuses on commercial and common carrier liability, automobile liability, premises liability, dram shop liability, and general civil defense litigation. He can be reached at bcash@luederlaw.com