Quimbee logo
DMCA.com Protection Status

Social Media Discovery and Evidentiary Issues

4.8 out of 5 Excellent(25 reviews)
GC
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

Social Media Discovery and Evidentiary Issues

Perhaps no area of discovery is more active than Social Media. The ubiquitous nature of cell phones and the proliferation of social media sites has spawned countless discovery challenges and disputes. This fast-paced seminar will help you identify the critical issues you need to focus on. Practice pointers, timely advice, and ethical considerations will also be offered – and will be valuable for all levels of experience with these complex issues.

Presenters

Gerald Connor
Partner
Margolis Edelstein

Transcript

Jerry Connor - Hello everyone. And thank you so much for joining us in today's presentation of social media discovery and evidentiary issues brought to you by Quimbee. My name is Jerry Connor, I'm an Insurance Defense Attorney with a law firm called Margolis Edelstein located in Scranton, Pennsylvania.

This is a very timely and interesting topic. And over the past few years in our practice, which is primarily civil litigation related to personal injuries, social media discovery, and all of the related issues have been at the forefront of almost every case that we have dealt with. We'll do our very best to identify exactly what we're talking about. The methods of obtaining the information, the duties people have in preserving, and requesting this information. And then we'll talk as to the challenges that are often present in getting this information, to a jury or to a fact finder. We'll review some of the ethical issues towards the end of the presentation. And over the course of our discussions, we'll try our very best to throw in some practice pointers and just practice tips arising from my personal experience in this world and some of the issues that we have seen and how we try to work together to move forward on these important issues. As always, this is for general information, and certainly you have a duty to understand the case law and particular rules of procedure and of professional conduct, in your own state or jurisdiction.

In general, by way of a very broad overview. These issues simply didn't exist even 10, 15 years ago, but in the digital aids, social media, texting, and almost every other form of technology have increasingly become common, certainly in the hands of almost everyone. And as soon as this technology spread, people used it to preserve photographs, comments their activities, making it a very ripe area for evidentiary issues and discovery issues. If you're newer to the field, it can seem a little overwhelming, but certainly if you're brand new to the field, you have an advantage because most of these issues, if not all of these issues have already been litigated. Several years ago, we were just starting to see issues with cell phone use leading to distracted driving and a call for punitive damages. I had one of the first cases in Pennsylvania regarding cell phones and punitive damages. And there was really almost no law in the United States, as to how they would be treated. Well over the course of at least the last decade, most of these issues have happened, and most of these disputes have been resolved and certainly highly litigated throughout the United States. We'll highlight some of these important cases, some of the earlier cases to really show how courts have grappled with the wide range of these issues in their own jurisdictions. And as always check your local rule, check your local updated cases. But these are really interesting issues and it's a fun seminar to at least spot some issues and give you a roadmap and some guidance along the way. But, for the newer folks out there, you're lucky because we've made some case law for you, good, bad, or otherwise.

Social media networks, such as Facebook, LinkedIn, and the, explosion of other applications on cell phones that have provided an incredibly valuable source of discoverable information, communications between folks are no longer are in writing, they're not just emails, there are texts, there are web chats, there are comments on social media sites that can truly provide relevant and critical information, but you have to know that it exists. Someone has to preserve it, and someone has to help you collect it, obtain it, and understand it for it to be useful in whichever side of the case, you're going to be on. We see these cases come up in certainly my world, the personal injury world, but they're also critical in criminal cases, employment law, family law, pretty much, there's not one aspect of the law that is not almost directly impacted by the potential for electronically stored information to be relevant, or at least provide some information that may lead to other relevant information.

There are more than 200 popular social media sites, and I'm sure the minute I put that slide together, there were more than 200. There are almost countless websites, Instagram, TikTok, so many different ways of people communicating and preserving information that by the time the seminar is done, there are probably going to be several other ones. The general rules and laws are going to apply. But the rise of so many other alternate forms of communication have really provided kind of a challenge for the courts to address. And again, for practitioners to understand and try to make use of in their respective cases. According to a 2019 Pew Research Center survey, the most commonly used social media platforms were YouTube and Facebook, with 73% of people using YouTube and 69% using Facebook from there, it fell down through Instagram, Pinterest, LinkedIn, Snapchat, Twitter, WhatsApp, Reddit. Again, these percentages have generally held for the last five years or so. But again, different platforms rise in popularity, different platforms fall in popularity and new platforms are coming up constantly. The critical thing, if this turns into be, if this information may be something relevant is asking if these documents or these websites, these apps exist and were used you by your client, or by the target defendant. And again, understanding how they work, understanding how you get this information and understanding what you can do with the information once you've gathered it. And at least have some sense that it's actually relevant and can be tied back to the original author.

Now again, from a general overview, the data available from and via smartphones or other mobile devices is discoverable. Rule 34 of the federal rules of several procedure, for example, are very clear on that point. And I'll read it because it is very all encompassing. A party may serve on any other party a request to produce and permit the requesting party or its representative to inspect, copy, text, or sample the following items. And it goes on to say, any designated documents or electronically stored information stored in any medium from which information can be obtained directly. Well, that's obviously incredibly broad and the courts have made that broad purposely. Again, technology changes the rules don't always change with every new app, but by a broad net that is being cast, it's intended to capture way more than it's intended not to apply to. Throughout this seminar, we'll talk about electronically stored information. If you do other research on your own, you'll see EIS mentioned quite a bit. And that's just information that's out there, in the old days, it was on a hard drive or a floppy disc that progressed to the point of cloud based storage. Very rarely do computers even have floppy discs anymore. They may have flash drives, but the information is still out there somewhere, but the means that you get it and the methods by which it were saved are incredibly changing and always advancing. But the rule doesn't really care it's any, in any medium. So, that's kind of the overall perspective, of what we're talking about and what the rules talk about.

Texting, that is a big issue, and it's certainly something that was significant in the criminal world. Many of the cases I've seen arise from criminal conduct, where someone texts another person, usually it's a police undercover informant about a drug deal or a drug pickup, or a dispute with a drug issue. We don't see a lot of texting in my world. Although very recently I had to produce text information on a case involving whether someone was an employee or an independent contractor of another employer, and the texts, in my opinion confirmed a pretty far arms length transaction, but my client admitted, yes, they would text every now and then with this person. And we then were able to, you know, capture those texts and then produce them. We admit that they were ours and the authenticity was not questioned. So that certainly took some of the issues that we're going to talk about off of the other side's plate. But texting is certainly one of the first things you want to ask for, in any number of cases, you know, car accidents, people will routinely text their loved ones that they've been in an accident, perhaps they take photographs, but the way to get those is almost always related to the device itself.

And there's generally two methods of getting text information. Someone takes a screenshot, which is what we did in my case or photographs of the actual text message. It's critical that you get as much backup information as possible, phone number, any other identifiable information related to that text. It may have the date and the timestamp down to the millisecond, it may have the location where that text was sent from or where it was received. The phone may or may not have some of that information. And it's always important to get a digital expert involved as early on as possible in the correct case, because your phone has an amazing amount of information in there. And we only see the surface of it, but the underlying software. And even sometimes the hardware that makes texting such an easy process is driven by a very deep set of circuitry and programs running in the background that we never know are out there. So that's why it's critical that these documents and these items be preserved.

Now you can authenticate a text, no different than I did in my case, my client produced them and said, "Yeah, those are my texts messages with this person, and they say what they say, they've not been altered or modified or changed in any way." Oftentimes there are disputes as to who had access to a cell device. Well, then that litigation takes a different turn, but just by way of background. Text messages are very common in these cases, and one of the first things you should ask about and try to get access to early on. To properly introduce evidence from a social media post at trial, you need either a print out of that page or a download if it's a video. And again, you wanna make sure it has all of the earmarks, when it was uploaded? When it was produced? Who produced it? And any chain of modifications that may be present in that download. You wanna capture this as early on as possible, whether it's your client or it's someone who you believe may file a claim or a lawsuit against you or your client. You wanna go out and capture it as quickly as you can, save it and as much detail as possible. And again, make sure it's secure so that you have a good chain of custody. Should this become a challenge down the road.

One of the critical takeaway points I want to stress from today's presentation is preservation. You don't get to the fun stuff with these documents, with cell phones, with dash cams, with any type of electronic stored information could be a black box in a vehicle. It could be texting, it could be someone live streaming. It could be a Facebook live someone's in a car, you know, on YouTube or Twitter. We've had some of those cases pretty recently, where people are filming things and there's an accident or an incident. The most important initial them to preserving smartphone or text evidence is to serve a preservation letter on the other side, or on your own client, as soon as possible. Now, what do we mean by that? Well, when preserving mobile data, there are several technical and logistical challenges that need to be addressed. Certainly, if you're going to server a preservation letter on a giant company, it needs to be done so that it causes as minimal a disruption to the business and individual people as possible. But, without obtaining devices and without putting the other side on notice that this is a challenge, that this is something they have a duty to do, now that you've asked. People, don't know, companies typically do not log information such as text information or chat conversations, or even call records on a central server.

When you get cell phone records, either through an authorization or a subpoena, it may suggest that there was texting going on, you'll see income and outgoing text messages. It's very hard to get the content of those messages without actually having the phone, having been preserved. Generally, the only way to preserve that information, the actual content, not the fact that something happened is to secure the individual device, the iPad, the phone, to prevent it from being overwritten or spoiled. And spoliation is really one of the dangers that runs throughout the entire world of all discovery, but certainly ephemeral discovery, such as texts and Snapchats and you know, items that really are almost meant to be temporary and non-preserved. Challenges are always coming up in this arena. Once you've determined what you need, you may face technical challenges, getting it.

There are a growing number of applications that support encrypted messaging, which is very difficult to collect. Different programs can be running on a mobile device at any one time. They may all be gathering data. Sometimes it's the same. Sometimes it's different group of data. The specific type of phone Android, Google, iPhone may have proprietary software that makes accessing that information very difficult. Operating systems are constantly being updated and enhanced. It may make collecting this information incompatible, or certainly less effective. There are always upgrades, there are always updates. Some of them purposely to prevent exactly what you're trying to do, is obtain substantial information from the device. Certainly hackers are the number one source of challenge for internet security. So it's certainly not a surprise that the manufacturers and the cell phone companies, the social media companies have built an incredibly a high firewall around most of this information. And it's pretty hard to get to it if you don't have the proper technology and the tools, and usually an expert who knows exactly how to get in and get out with what they want.

We use the word preservation kind of generally, but what's the difference between a preservation letter and a legal hold notice? Well, my clients, when we get a new lawsuit in, as part of our standard retainer agreement, we always put in what we consider a notice of a legal hold, basically saying hold onto anything and everything that may be at all related or relevant to this claim that can run the gamut from security footage, pictures, incident reports, anything at all, very broad and it's meant to be. A preservation letter is sent to the other side, telling them, "Hey, I represent this person who was now injured in a car accident, or who slipped and fell walking out of your store. I need you to preserve, and it's A through Z." We'll go through some samples of things that we do generally suggest be in a preservation letter. They can be unwieldy, and depending on the litigation and your target defendant, it's meant to be, it's meant to be as broad as possible. Again, you wanna cast as wide and that is possible, obtain as much information or at least have an assurance that it's being preserved. And if you can access it and what you do with it down the road is really the next step.

Now, there is no legal duty for a plaintiff to send a letter, right? Someone slips and falls at the grocery store. They don't always think to tell the grocery store, "Hey, keep that video, keep those statements." Video's the big one, many stores in this day and age, still overwrite surveillance video, or security footage every 30 days, every 60 days. So if you haven't told them to preserve it, they may not. Now your preservation request needs to be reasonable. And that's going to depend on the laws and the case law of your state. Oftentimes we'll see preservation letters sent for a security footage for the 48 hours before this incident and for the 48 hours after of the incident, that's generally going to be held to be unreasonable, but a few hours before the incident to see if someone spilled something and it was not cleaned up, is gonna be helpful. And seeing if something was not cleaned up or was cleaned up, can be very helpful in my defense. So that's a critical difference with those two things.

Shame on an attorney who doesn't tell his own client or her own client to preserve evidence that's through the litigation hold. Many plaintiff attorneys now have updated their retainer agreements to specifically require their own clients, not to destroy social media evidence, not to destroy texting, not to destroy pictures, not to delete information on Facebook or whatever social media site may have information. You certainly can tell your client to make your settings private, but you absolutely cannot tell them to delete any information that's at all relevant. A preservation letter in the most simple terms puts the adversary on notice, not to destroy records. It focuses their attention on electron evidence and to take all of the steps that might be necessary to preserve this information. And as we've said, data on social media platforms is subject to the same duty to preserve as other ESI or remember electronically stored information. The duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in the litigation. All evidence that a party's possession, control, or in custody is subject to the duty to preserve.


Now, what's a party's control? Well, that's generally accepted to be when the party has the legal authority or practical ability to access it. What do you put in a preservation letter? or flip it around, what do you tell your client to keep? Well, it should be detailed, broad, and explicit. I'm not sure that all of those three words are not mutually exclusive or are contradictory. You know, if something's going to be broad, detailed, and explicit, I don't know that it can be made broad, but trust me, we find a way to do this right off the bat, in almost all litigation, you're going to want your client, regardless of which side you represent to maintain cell phones and all devices. Be very broad about that. There are iPads, laptops, hard drives all those kind of things, no harm in being broad in that. And again, down the road, you can always say, "Hey, we asked you to keep any at all." If someone destroys a cell phone, they turn it back in on an update program that could have incredibly relevant data that is now really almost impossible to reconstruct. Internet history and data on social media accounts, that can be a little harder to collect, and to maintain, and preserve, but it's not impossible. And companies who have good IT departments are able to capture that, especially if they've been put on notice.

Individuals, it's a little different, but again, there's no harm in asking for that. You specifically tell them not to delete, destroy, or even access the information accessing data can sometimes leave a digital fingerprint that may change the nature of the data. It may not, but there's always that risk. So you don't want anyone going in there, which gives the appearance that perhaps something was modified, perhaps inappropriately. Here's some sample language, and I have sample documents along these lines. The internet has incredibly helpful and detailed samples that you can access as well. What do we ask for in a sample preservation letter? Well, electronically stored information should be afforded the broadest possible meaning, electronically, magnetically, optically, or otherwise stored, digital communications. And again, you do your very best to make that a broad definition, email, voicemail, text messaging, WhatsApp, and the actual hardware, SIM cards, or flash drives, preserve email servers, and that's kind of the bigger level, right? Your Gmail, your Microsoft, your Outlook, word processed documents, and all of the different edits to a document, again in automobile litigation and other civil litigation that may or may not be significant, but drafts and changes to a file can be very relevant. And it can also show any tampering. Presentations, social networking sites, there's certainly one of the big issues of our seminar today. Facebook, Twitter, they go on and on.

Cloud repositories, again, it's pretty rare that will still have actual hard drives, flash drives, floppy discs, but wherever information is stored, you wanna make sure that someone is preserving that and all of the contents that could be relevant, backup and archival files that can be helpful. There's actually great websites out there now that allow you to go out in the past type in a date and see exactly what the internet or a website looked like on a certain date. That can be incredibly powerful, whether that's going back on Google or Google maps or satellite photos, or just to see what a website talked about. That comes up a lot in products cases. A company rolls out a new product, and then they have problems, they change their website, they change the product description or the uses. Well, it may be very helpful for you to see how that product was described when it came out several years earlier.

Contact and customer relationship management data, basically names and addresses, PowerPoints, Excel, spreadsheets. You want to be very broad depending on the case you want, you may need someone to keep their online bank records, credit card information, accounting applications, image files, sound recordings, wave, MP3s, video, and animation. And there we talk about security camera footage, and that's, you know, MP4, the AVI designations at the end of a video, very broad. The ground game is oftentimes in security footage and social media, but in the right case, again, I don't know what all of my fellow practitioners do and what cases they practice it with, tailor it to your own needs. But again, you wanna be very, very broad. Calendars, journals, diary applications, project management applications that can be important with construction litigation, who was on the job site when? What did they do? What didn't they do? Were they required to come back? Who was on the job site with them?

Internet of things it's called. These are Amazon echo, Alexa, Google home, Fitbit. Oftentimes many of those exercise devices will track a person's location. They'll track how far summer went for a run. That can be really important in a case where someone says they can only walk for five minutes and have to take a breath. Well, we've had had cases like that. There have been cases litigated in Pennsylvania where that information was incredibly relevant. Someone ends up running a marathon and you get those marathon records and also trying to get their exercise, timing device that they're wearing on their own wrist, devastating to a case. So, if you think that's at play in your case, or it could be, make a request for it as early on as possible. In the right case, computer aided design files, temporary internet files, webcasts, Google history, cookies, network access, and server logs. Again, in the right case, those could be critical. When did someone access the company website? When did someone access the company server? What did they do? What sites did they visit? What changes did they make? The preservation letter again, you wanna make it very broad saying, "Here's all of the things we want you to keep, but it's not intended to be the entire list." This is a minimum requirement, your duty, especially depending on federal or state court and the laws of your state can be perhaps even more encompassing, but you may be in the best in, you know, position to know what you think is gonna be relevant in the lawsuit that you anticipate getting, right? You gonna get sued, you may or may not know what you did. Your clients certainly may or may not know. And they may know, well, we use a homegrown software program called counter data, and that's not gonna be found in a preservation letter. That's a homegrown software program written as a manuscript for a particular or industry or company. Well, you know it exists and sooner or later that's going to come out. And boy, you'd better keep that. Especially if you've been served with a very broad preservation letter. You wanna spell out their obligation to preserve this information.

Passwords, don't destroy anything. If people have regularly scheduled destruction of documents that needs to be put on hold. Now many companies, purge servers, they purge their cloud because it's expensive to keep all of this information endlessly, if you don't need to. But once you've been put on notice of a lawsuit, you need to stop that purge. And certainly recognize that that could really come back to haunt you. If someone needs help in preserving that, there are companies that do that, in the right case, you may wanna put that burden on the plaintiff and say, "Hey, we have 10 trillion gigabytes of documents. We can't keep them forever. We don't keep them forever. If you want them, we'll give you access or limited access for you to download them and preserve them." This isn't for the run of the mill case, everyone, but it's certainly is an option. And again, in class actions and pretty big litigation, it's relatively common.

But again, your goal in the preservation letter. And again, I don't want to beat this horse till it's dead, but it is critical. A lot of practitioners just don't give this a second thought. They've always just sent, I represent Joe Blow, I may be filing a lawsuit. Don't talk to him anymore. Well, it doesn't take a whole lot more to put a preservation language in there. And again, this is a little, a little more streamlined here. Preserve emails, devices, and hardware that can be critical. Don't ever give that short site. 'Cause oftentimes the cell phone itself is the only way you're ever going to get some of this information. Internet usage, system file logs. And again, you're telling the company, but you're also being very broad. Your agents, your remote operations, you know, people have offsite storage, cloud storage. Well then you need to put your vendors on notice that they need to hang onto this information and preserve it. These letters can be very detailed and again, you have the material.

So I don't wanna read them verbatim. I'm trying to give broad strokes here. But again, it's critical that people be put on notice and that they actually hopefully respond to this notice. And again, similarly, you want to make sure your own clients have been put on notice. Don't destroy information. Don't turn in your cell phone 'cause you got a 500 free minutes, if you upgrade or something like that. How they choose to reserve this information is perhaps on them. But again, the critical thing is you've told your client and I've told your client hang on to your stuff, simple as that. Well, the world wouldn't be interesting if people fail to do what they're supposed to do. If electronically stored information that should have been preserved, anticipating litigation is lost because someone failed to take a reasonable steps. Now again, there's always wiggle room there and it cannot be restored or replaced through additional discovery. The court can find that there was prejudice to another party and they may order measures no matter, no greater than necessary to cure it. That can be just about anything.

Now, if they believe that the party did it with bad intentions, you know, with an intent to de deprive someone, of information or access to information, the court can presume, it was unfavorable to the party. That's an unfair presumption instruction. I think every state has something along those lines. And that tells the jury that it may or must depending presume, the information was unfavorable to the party or perhaps even dismiss the action or enter a default judgment. If you wanna hang your hand on the defense, but yet you were in control of the information that would support that. And you get rid of it with the intent to deprive someone of that information. You may not be able to raise a defense. Yeah, there are entire seminars available as to how to do this. The easiest way I is to get a good electronic storage expert who knows how to preserve these items. I've been present and party to a number of these forensic examinations of Facebook accounts. They're almost like an autopsy. They're fascinating to watch, a skilled practitioner go through and it's literally, I'm now entering the password. I'm at the opening page and you know, here's what I'm going to collect. It's a, you know, they're usually videotaped. Everyone can be a participant and it's truly it like watching an autopsy. Facebook allows someone to download their info. They can collect a zip file of timeline information, posts, and messages. Twitter has a similar function. Again, the critical idea here is issue spotting, like we learned in law school. I'm not an expert how to do some of these things, but I'm an expert in finding experts who can, and you need to be an expert in knowing what you know and knowing what you don't know and retaining the correct colleagues or experts to make your life a lot easier and put that burden over on them. But the critical idea is to know if it's out there, you can preserve it.

Again, sanctions for not preserving can be significant. This is the first case I've found. And it only goes back to 2011 and it involves sanctions to a social media discovery problem. A plaintiff attorney told his paralegal to make sure the plaintiff cleaned up his Facebook page. The paralegal helped the plaintiff to deactivate his page and delete 16 pages from his account. Although the pictures were later recovered by here we go. Our friend, the forensic expert, the court found that sanctions were warranted because of the misconduct, that's a Virginia Case. Lester verse is Allied Concrete. And again, that's one of the first decisions I've ever seen out there. In contrast, a federal court in New Jersey imposed significantly less severe sanctions for Facebook posts. This was a New Jersey federal case. In that case, the court determined that the defendant committed a technical spoliation and what they did in that case, it was an issue with trademark and trade dress. So there was a picture that the other side said, "Hey, that's exactly what I'm talking about, your infringing, my trademark or my trade dress." They had control over it and they took it down. They took it down off of the profile page. They were relevant, this photograph, the photographs were relevant. So their removal was somewhat prejudicial, but instead of a horse evidentiary or monetary sanction the court simply said, coordinate with the plaintiff attorney, get your act together and change the picture back for a brief time, plaintiff can print it, do whatever they wanna do with it and you move on. Now critical to the court's decision, there was that there not need be sanctions, because the plaintiff had not explicitly requested that the defendant preserve the Facebook account as evidence. The court concluded, that it would not have been immediately clear that to the defendant that changing the profile picture would be a destruction of evidence. So, any spoliation was unintentional and that's critical.

Counsel should consider issuing a litigation hold to opposing parties, which is again a preservation letter, as well as to one's own client. I had a terrible trucking case several years ago, where my truck driver was alleged to have been a distracted driver, he was not his data usage was significant 'cause he was streaming online radio through the, over the airwaves. But he wasn't distracted. He wasn't watching videos or anything, but unfortunately unbeknownst to him, well he knew it. He traded in his cell phone, his family's cell phone bills were it's rage. He traded it in for a much lower priced plan, but that phone was lost to eternity. We were able to reconstruct his data usage, but we were never able to get what apps he had or any real hardware type information that could have been taken out of his phone. We worked through those issues and that could have gone another way. Luckily we were able to reconstruct many things with the help of his cell phone carrier. But in that case, my client really had no idea, he needed to save the phone. It had been examined by the state police on the side of the road after the accident they looked for any pictures or any apps or anything. And they gave him the phone back. In his mind, he was good to go. Hindsight's amazing. It seems like he should have known to keep it, but that was before counsel was involved and it was shortly after the accident, but with no intent at all to destroy evidence. The phone was destroyed or certainly lost in the shuffle. So, the ground game there is intent to deprive someone of information or access to the information.

So, if these cases come up, focus on that, make sure your client didn't do something intentionally. And if they can provide a good faith basis as to why they didn't preserve something that may save the day. Consequences of failing to preserve, here's another case. Now this was a much higher level litigation. This was in regard to Pfizer with securities litigation. Pfizer had apparently E-Rooms, internal collaboration sites on their own application network where company employees could communicate and they didn't keep those apparently. Most of the information was also preserved in other ways, you know, people would write an email say, "Hey, thanks for collaborating today, here's what we discussed." Those were all produced. But the actual I'll say chat rooms, which is probably not the actual term of art were not preserved. But the information from these discussions was generally preserved, maybe not everything. How do you know? You don't know what you don't know and you don't know what is missing. In this case, the court agreed that the company breached its duty to preserve because the litigation hall did not include these E-Rooms. Again, you don't even know those exist as an outsider, but Pfizer certainly did. And that's what I said. These are meant to be broad, so that the target will say, "Hey, well we have the Pfizer E-Room. You didn't ask us to keep that. Well, no, I didn't know you had that, but you did know that.

So, in this case, the idea was that, it was not a sanctionable violation. It was negligent. And they had never shown that any data was lost or indeed it was even relevant to their claims. That's kind of fudging, the finding though, because again, how would the plaintiff ever know what data was lost? Because it's gone. Another layer of complexity and this is something that each state is always still wrestling with is the preservation in the BYOD, not bring your own bottle, bring your own device. Oftentimes companies either provide an employer sponsored and paid for cell phone or iPad. Sometimes there's two things, there's the employer phone and the person's work phone. Oftentimes those two bleed into each other. People are texting on their personal cell, doing business on their personal cell, accessing sites, accessing email on their personal cell or other device. The employer's not paying for it. The employer may or may not know it exists. They may not have access to ask anyone to control that, if that's a super relevant part of your case, you may need to sue the employee separately and send them a separate preservation letter at a minimum, even if you don't sue them, you can serve that preservation letter on their employer. But if you have access to the employees address, you may wanna direct it specifically to them to keep your device, doesn't mean it's going to be successful. Doesn't mean that there's going to be a duty there, but there's sure may. So, in the appropriate case, if you have any sense that there are other personal devices being used by employees, do your very best to send a preservation letter, not just to the employer, but to the individual employees as well. That's a great practice point that can oftentimes get lost in the shuffle. People don't know it exists and they don't ask for it.

Now, how can a company possibly have an obligation to preserve, you know, the social media content of its employees? Well, here's a case with Costco, where they basically held the employer did not possess or have care custody or control of an employee's text messages on their personal cell phone. Now they may be relevant. They may be something you need to look into, but you're not gonna nail the employer for failing to preserve that because they simply had no way of possibly controlling what their employee did. The other wild card too, is in many of my lawsuits, if it's trucking cases or other cases with audible deals with employers, once there's an accident, those people are fired much harder to get information from a terminated employee. So, even if the employer was thinking they would be helpful or at least try to do it, once they fired these drivers for having the accident, that electronic information is going to have to be accessed directly from that former employee.

The industry tries to wrestle with this, in May, 2018 different principles of our kind of formulated by what's called the Sedona Conference. Kind of generalizations this what you normally get from these type of conferences. But, you know, it, it's kind of the two ends of the same sort. The third principle says that mobile device data can be discoverable. Employee owned devices that contain unique, relevant information should be considered discovery sources. But then it tries to set some boundaries, employee owned devices that do not contain unique, relevant information need not be considered sources of discovery. Well, that's kind of a circular kind of statement, I think, but the takeaway from this is determine whether there are these devices. If there's a policy, a handbook, or a written policy about your company's employees using their own cell phones, always in your letter, ask the employer to preserve this information. And let's just make this more relevant. Remote work has skyrocketed obviously due to COVID-19, making all of these issues that much more difficult people are at home while outside of their employer's purview. The employer doesn't have access to their internet provider, their internet service provider, what they're doing, whose devices they're using when they're doing it during work hours, just another layer of complication.


Moving forward certainly, social media discovery is critical. You wanna obtain relevant social media evidence, courts are still struggling with this, but again, there's a much better foundation of law than there ever had been before. Early on, part of the ground game was whether there was an expectation of privacy. Now, in general, the courts have said, well, private doesn't mean it's not public. While your Facebook may be public, completely open. It may be semi-private or private to your designated friends. In general, the fact that you're putting stuff out, even for your friends, means it's not reasonably anticipated that you have some legal right to privacy. Now that's not everything and in every case, but the broad case law has pretty much now gotten over that challenge. Most courts have rejected that, you know, there's an expectation of privacy. And again, I love the quote, "Private is not necessarily the same as not public." So when you share information, even with a small group of people that does not mean that you can say, "Nope, that's private." Probably not gonna be successful. How do you get this information? Well, all of the traditional methods of discovery apply, sometimes there will be a request for direct access. Generally, that's going to be denied. You know, you're not gonna give someone, that's like saying here, "There's all my file cabinets, go start snooping, see what you like." That's not usually how it works out.

One of the early cases was the Pennsylvania case here. And the court kind of came up with, you know, kind of trying to split the baby, so to speak. Where defense counsel was going to be given access to the plaintiff's Facebook, just to inspect it, whatever that means, they were gonna have 21 days to inspect it. After that the plaintiff could change her password and prevent further access. There was a question whether that applied only to the defense defendant's attorney and to the defendant, whether the defendant could review it. I don't honestly know how that got worked out, but again, these are the narrow issues that can be, a real challenge in a case, you know, let an attorney look at something, but not let anyone else. Courts hate this, a next option, but it's an in camera review. That's where you say to the judge, "Here, judge, I'll get, let you look at everything and you decide what can be relevant." Oftentimes that's for, you know, I wanna see if someone's taking vacations from a personal injury standpoint, are they jumping on a trampoline? Are they going to concerts? Are they traveling when they said they couldn't do any of those things? Courts hate that, they really do not wanna be the arbiter or fact finder, especially if this evidence may be something down the road for a motion to eliminate or a trial. But, courts have done it in the past. Again, it the very fact specific case, but ultimately in some of the cases I'm citing, and again, I'm going fast just to spot these issues and alert you all to these issues. There was a growing body of case law and you can really do a deep dive. They're very interesting cases, how the courts handle the competing interests. But in the Douglas versus River walk grill case, the court took a look at things and found somewhere discoverable. But generally, courts do not want to be determining relevance. They only wanna get involved for the dispute.

So, how the attorneys agree to access or what's presented, that's a case by case basis. One court handled this back again. This is the outs and these why I highlighted more, so the early cases, 'cause these are the bigger foundational issues that we're going to be dealing with or that you may find. The court allowed one of the litigants, I think it was the litigant, I don't know if they may have been prosy to friend someone on Facebook to go in and you know, look at the information or they couldn't send it, they couldn't disseminate it, but they could preserve it, they could collect it and then close the Facebook. Another option would be attorneys only having access, not clients, no one else or maybe the two attorneys together looking at all the pictures and saying, yes, that's relevant or no, that's irrelevant. If you have the reasonable counsel on the other side, that's probably something that can work. Again, courts don't like to get involved. Courts have allowed defense attorneys, their own access, and then to decide whether it's relevant, whether it's going to be a problem or to identify certain photographs or bits of information that may be subject to challenge, courts will they'll weigh in on that. They don't want to be the first review, but they'll be the second or third review on things you can't agree. It's always good to hit the high points here, discovery. That's what this is all about certainly. Interrogatories are a great way of collecting this information, seeing what's out there, a request for production of documents. Most requests now will include a definitional addition that talks about electronically stored information, text, social media, websites, emails, requests for admission.

Boy, if there's ever been a more powerful tool in having someone authenticate a document. Now in the old days, it was documents, today it can be websites and postings and social media accounts. Present it, use a request for admission, I think every state in the country, certainly every federal court has that ability. Admit or deny this is you, admit or deny this is an accurate representation of this post. Really powerful stuff, we don't see that enough, but that's a really good way of pinning someone to the wall. And if someone says, no, I didn't make that post, that's not me. Well now, you know, now you know, that's a challenge. Deposition, same thing. You can have exhibits printed, produced them to the other side. Yep, I made that post. No, I didn't, that's not me, or you know, someone else had access to my account. That's fine. Subpoenas upon mobile device carriers, internet service providers, social media apps or companies are all available. Sometimes you also need an authorization. Sometimes subpoenas are challenging because many states and many providers will not honor a subpoena from another state. If they're not in fact subject, or at least they claim that they're not subject to the laws of the home state where you're generating the subpoena. The that's why sometimes you do need an authorization.

Sometimes for governmental records, you can get a public records request filed, a freedom of information act request. Doesn't always work, but at least you can put it out there. And again, you're wanting someone to preserve it, but you can also accompany it with a freedom of information act request to access this name information, and if the information disappears, there are now two different requests that they have violated. A discovery motions, a motion to preserve in a big case or in the correct case, that's powerful. In many of our trucking cases, we see that there's a terrible accident within 24 hours. And attorney is at the courthouse steps with a motion to preserve. It's an ex parte motion because they haven't even sued anybody yet, but they go in and then they serve a court order telling people to preserve everything. Again, if you're taking a few practice pointers or a few nuggets away from this seminar, a motion to preserve is a critical document to have. Generally not a mobi litigation, black boxes, cell phones, dash cams, whether it's inside the truck cab or out facing out, logbooks, just about anything and everything you can ask for a court to preserve, generally they will. It's almost like an injunctive hearing. And again, it's ex-parte, so they may expire or the court may say, you know, there will be a hearing within 30 days on this, but for right now serve that order certified mail perhaps by a constable or a sheriff or whatever the service rules allow in your state. Boy, that's a great one because if someone then or disobeys that it's more than just disobeying a preservation letter. You're now in contempt of court or violating an order of court. So if you're taking a few little notes from here, a motion to preserve is critical, and I can provide samples if you need it.

But again, your own course will have whatever requirements are out there pursuant to your local rules. Motions to compel, If you don't get information, you know, you can ask the court to prompt that along, a motion for protective order. Well, I think you don't have access to my entire Facebook. You shouldn't have access to my entire cell phone. Here's some suggested bounds. That's a protective order. So that's you affirmatively going to court and saying, "No, no, no, we need, to put the breaks on this discovery judge, right here, right now, it's ridiculous." A privilege log, someone may black out 99% of a Facebook account. Well, if I don't have access to the Facebook account, I don't know what you blacked out. Tell me what's privileged. Tell me how you possibly have access or the right to keep me from seeing some of this. That's a hard argument on Facebook. You may need a motion to enforce a subpoena. You may need a motion for sanctions.

Now, legally, there are of course the federal rules of evidence. The federal rules are generally the mirror and the foundation for most state rules. So again, relevancy is the initial threshold, but that's a pretty low bar. If it's relevant, it means it has any tendency to make effect more or less probable. Okay, that's you know, 101 evidence. So, it's hard to say that most of this information is not relevant, doesn't mean it's admissible, but it certainly is generally relevant. Relevancy is of course the threshold analysis. I can't access your Facebook, if I can't at least come up with some ideas to why I think it might be relevant to my case. But just 'cause it's relevant, doesn't mean it's authentic. It doesn't mean that someone else didn't access it. Didn't post to this information. Didn't have access to change information either with your permission or without your permission, perhaps without your knowledge. So, you get over relevancy, which is a low hurdle. You gotta be able to authenticate it. Be able to prove definitively that when that email was sent, when that post was made on social media or you sent that text, that, that person actually did any of those things. You generally want to over authenticate, again, if you can get that information through a request for admissions, your job is done. Under oath, someone that says, "Yep, I sent that text. Yes, it was accurate. Or maybe it wasn't accurate, but yes, I'm the one who authored that and I sent that information out or I posted that information online." Sometimes people just won't admit it. And I don't remember, well, that's pretty weak, but it's not uncommon. And then you get into a battle as to who else had access to your cell phone. Authentication can generally come up circumstantially, you know, who else had access to your cell phone? There may be unique information in the content that says, "No, that's who sent that information. He's the only person who called me this name or used these initials, or you know, knew that there was this, you know, secret hole under the floorboards, so to speak"

Different social media accounts may have different levels of authentication. Again, you wanna do your very best to just authenticate that. If it's going to be an issue. So, when, where, and how was it collected? who collected it and how was it preserved? Again, authentication is critical. You wanna make sure that there's really no other reason that someone would've been out there to create evidence, to falsify evidence. You wanna make sure though that there was not a data breach, that a password has not been changed or hacked. That could be important. You wanna understand and again, this is through an expert. Does the platform allow people to go back and edit text? Do they get to change things after the fact. You may need to also look at your local rules of court, primarily the evidence rules to see exactly how do you go about authenticating digital information or electronic information. Many times this isn't an issue most people will say, "Yes, that's my Facebook. Yes, that's me on vacation. Yes, that's me on the trampoline, but you didn't see me the next day." That's fine. Again, the truth or falsity of the content isn't generally what's at issue, it's is that accurate? Did you post this? Is this not something that was done falsely or you hacked? Look at federal rule 901 that really talks about, you know, how you are able to satisfy the burdens of proving, that something is authentic. Federal rule 902 the same way, and again, this isn't an evidentiary seminar, so I don't want to delve into these rules too deeply. But the critical thing is to know that they're out there and know that social media and electronic information is absolutely anticipated throughout all of the rules of court. And many courts have caught up with that at this point, certainly.

Again, I'm a big fan of request for admissions. Just put that in your tool belt and use it a little more than perhaps you are. People will oftentimes just admit, "Yeah, that's my cell phone." Federal rule 902, it is interesting, evidence that is self-authenticating. So you don't need extrinsic evidence. If you know, you have certified records generated by an electronic process or system. So, you know, at the end of day, the business may do a printout of everyone's internet history. They may keep that for some reason, maybe for customer contacts or efficiency models or a list of phone calls or any like that. Well, if it's generated in the ordinary course and scope of business, if a company will certify that that's legit, that's probably going to come in. Same thing, certified data copied from an electronic device. An expert can certify that this is what I pulled down off of the device. Social media forensic, this is when I talked about an autopsy, so to speak. Really fascinating stuff. The data that is collected by these devices and by these subsequent providers of information and service are phenomenal. Again, we only scratch the surface when we look at our iPhone, but location, speed, where did the text come from? When was the video posted? When was the picture taken? GPS coordinates. There's a ton of information out there. The critical thing you should know, it's out there.

As we end our seminar today, I always like to throw in some ethical considerations, 'cause it's not the Wild West, It's not a free for all. You can't request a connection through social media. If you know someone is represented, your agent, your paralegals cannot do so either. If you know someone is represented, you cannot contact them and you can't ask them for access or to become a friend. You certainly can't do that as a subterfuge. And you can't do it, your wife can't do it. your spouse can't do it, your husband can't do it, Your kids can't do it, really inappropriate. So, make sure you know the ethically that there are issues, same thing with LinkedIn. You know, the minute you become a friend or ask to be a connection on ,I think LinkedIn, that person finds out, that can be considered as a communication and a prohibited communication. I think New York, for instance, that is considered a prohibited communication.

And again, many states may hold that same challenge. ABA Model Rule 8.4 says you can't use deceptive tactics to gain access to a private account. Just remember those are out there. Don't look at it as a nameless, faceless, cyber stalking or cyber spying tactic, doesn't mean you can't search someone's internet. We do that all the time. Insurance companies do that all the time, but you can't spy on people and you certainly can't communicate with them through subterfuge or deceptively or to gain information without them knowing exactly how you fit in. So what have we learned? Well, it's been a fast-paced seminar and we've dumped a lot of information in a really concise amount of time. The world of technology and social media has finally forced most of the case law in legal rules of procedure to catch up. So a lot of the pre-Facebook discovery that we used to struggle with, how it applied.

Most of the states now have a significant body of case law with some ground rules and guidelines put out there to kind of give everyone a guideline and a roadmap. What's important? Preserve this, ask the other people to preserve it, get a preservation order if need be. Most of the information is likely relevant, which means you can get it. What you do with it is certainly subject to any number of limitations from a trial status. You need to adjust your thinking, just, you know, you request any and all photographs. Well, let's add social media, let's add electronic data to preservation letters. And let's make sure our own clients are preserving information and data.

With that, I thank you also very much for joining me together with Quimbee. As we discussed, social media discovery and the various evidentiary issues that are out there. If you ever have questions or concerns, of course, please feel free to reach out to me directly. But on behalf of Quimbee and all of our faculty, I thank you. Please be safe, take care. Thank you.


Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

Supplemental MaterialsHandout

Practice areas


Course details

On demand
1h 3m 51s

Credit information