Finding and Using Social Media Content in US Civil Litigation
Litigators have long known that electronic-mail messages are a fertile source of discovery because people often send their unguarded and candid thoughts by email. But social media posts can be a litigator’s nirvana or hell, depending on the circumstances, because many people reveal even more intimate information on this medium, sometimes in much greater volume. Social media posts can make your client’s case, or destroy it, depending on who you represent.
Litigators can seek discovery of social media content in two ways: (1) by “self-help,” or (2) by using formal discovery procedures. Both present potential pitfalls.
Self-help
A lawyer should also be cautious about pressuring a social media “friend” of the opposing party to provide access to the opposing party’s restricted content.
A litigator can look at the publicly-available social media profile of an opposing party or witness on Facebook or other social media sites with no legal complications, even if the party or witness is represented by counsel. Ethical problems can arise, however, when litigators seek to use other methods to obtain information posted on social media sites that is subject to restricted access only by “friends” or others designated by the account holder.
If the opposing party is represented by counsel, a lawyer (or the lawyer’s agent) should not communicate directly with the opposing party to request access to restricted content on a social media site. If that party is not represented by counsel, a May 2017 ethical guidance from the New York State Bar (which surveyed ethics opinions elsewhere) states that the lawyer may request access to the restricted portions but, must (a) use the lawyer’s full name and an accurate profile that does not mask the lawyer’s identity, and (b) respond truthfully if the opposing party makes inquiries about the nature of the lawyer’s interest. (See www.nysba.org/FEDSocialMediaGuidelines). Some states’ bar authorities have issued ethics opinions that require greater disclosures when counsel initially requests access to restricted portions of social media content from an unrepresented person.
If such unauthorized access to a person’s restricted content is obtained, that person could assert a common-law claim for invasion of privacy or misrepresentation.
A lawyer should also be cautious about pressuring a social media “friend” of the opposing party to provide access to the opposing party’s restricted content. One court has ruled that such “coerced” access violates the federal Stored Communications Act.
Lawyers and their staff should also not seek to obtain unauthorized access to a person’s private social media content through other means, especially through any sort of trickery. If such unauthorized access to a person’s restricted content is obtained, that person could assert a common-law claim for invasion of privacy or misrepresentation. Courts have held that a person’s privacy interest is not extinguished because he or she chose to share information with a limited number of persons (such as “friends” on Facebook) in a restricted portion of a social media site. Statutory claims for unauthorized access might also be asserted under the federal Computer Fraud and Abuse Act, the Stored Communications Act or one of many state statues that prohibit the online impersonation of another person to obtain a benefit or defraud. Finally, attorneys should not ask non-lawyer staff to engage in conduct that would ethically be forbidden to the attorney.
Formal Discovery
Many individuals feel that their restricted social media content is entitled to strict privacy, and are surprised to learn that there is no legal “privacy” privilege for such content.
Many courts have ruled that the federal Stored Communications Act bars social media providers (like Facebook) from responding to civil subpoenas for social media content. Those providers will vigorously resist civil subpoenas seeking their participants’ social media content. One workaround that has succeeded in some courts is to seek a court order requiring the opposing party to “consent” to the social media provider’s disclosure of that party’s social media content, followed by a “consensual” request sent to the social media provider. Otherwise, social media content is discoverable in civil litigation only from the persons who posted or received the information (which could include “friends” of the person posting the information).
Many individuals feel that their restricted social media content is entitled to strict privacy, and are surprised to learn that there is no legal “privacy” privilege for such content. There have been cases where individuals delete or modify their social media content to thwart discovery of what they believe is “private,” and have faced sanctions for spoliation of evidence. Attorneys should counsel their clients not to destroy content. In one case, heavy sanctions were leveled where an attorney told a client to “clean up” his Facebook page, and 16 photographs were then deleted.
Courts are particularly cautious about allowing expansive discovery of anything posted on social media that may have affected a party’s emotional state.
While there is no privacy “privilege” for social media content, many courts are reluctant to permit broad “fishing expeditions” through all of a person’s social media content and will grant motions to limit or disallow broad discovery requests. Some courts have gone so far as to require a party seeking to discover social media content to make a threshold showing based on other information that there is social media content that undermines the responding party’s position in the litigation. However, this position was recently rejected by New York State’s highest court (Forman v. Henkin, 30 N.Y.3d 656 (2018)).
Discovery is generally permitted of any social media content that sheds light on events that are material to a lawsuit (with a protective order where appropriate to protect a legitimate privacy interest against public disclosure). For example, if a plaintiff claims that an automobile accident occurred because of the defendant’s negligence, virtually anything that the plaintiff posts on social media about the details of the accident should be discoverable.
Photographs posted on a social media website can provide powerful evidence, since a “picture is worth a thousand words.”
Courts are particularly cautious about allowing expansive discovery of anything posted on social media that may have affected a party’s emotional state. Such discovery can be relevant and permitted where, for example, a plaintiff seeks damages for his or her emotional distress, or where emotional distress is pertinent to liability (as in a hostile work-environment discrimination claim). But even then, some courts will not permit discovery of social media content where the emotional-distress claims involve only “garden-variety” distress – namely where a plaintiff claims only hurt feelings or a sense of humiliation – and not more serious distress, such as Depression or Post-Traumatic Stress Disorder.
Photographs posted on a social media website can provide powerful evidence, since a “picture is worth a thousand words.” Courts have permitted discovery of photographs posted on social media sites where the photographs reflect physical capabilities inconsistent with a plaintiff’s claimed injury, or if they reveal the party’s emotional or mental condition in a case where that is relevant.
Some courts have ordered a party’s attorney to screen the client’s social media content for relevance and privilege, because of concern that the client will withhold content that he or she feels is private and personal. Only in a rare case will a court itself initially conduct an in-camera review of social media content. However, courts may conduct such reviews once a motion to compel production is filed.
New problems and issues will undoubtedly arise as social media sites and usage evolve. Litigators thus must keep abreast of the latest developments and case-law.
Once litigators obtain social media content, they must ensure that it can be authenticated for use at trial or in other proceedings. As explained in a recent state court decision, authentication can be a challenge since social media accounts can be falsified, hacked or created by an imposter. (See Commonwealth v. Vogel, 181 A.3d 1154 (Pa. Super. 2018).) For these reasons, social media content is not self-authenticating, and some other evidence is needed for it to be admissible. However, authenticating evidence can be circumstantial, and courts have ruled that the proponent of the evidence need only submit enough evidence (such as distinctive format or language of the posted content) for a “reasonable jury” to find the content to be authentic. Accordingly, a good litigator will be sure to take necessary discovery to prove the authenticity of any social media content that is obtained by self-help or through discovery, especially for the “bombshell” content that litigators all hope to find.
New problems and issues will undoubtedly arise as social media sites and usage evolve. Litigators thus must keep abreast of the latest developments and case-law.
Daniel I. Prywes
Partner
Morris, Manning & Martin, LLP
Mr. Prywes is a Litigation Partner in the Washington, D.C. office of the law firm of Morris, Manning & Martin, LLP. He frequently writes and lectures on social media issues that arise in litigation. Mr. Prywes routinely litigates disputes in a variety of legal areas, including contract and employment, antitrust, securities, whistleblower defense, intellectual property, non-compete restrictions, partnerships, government contracts, insurance and banking.
