social media evidence: tactics for discovery, use at trial...
TRANSCRIPT
Social Media Evidence: Tactics for Discovery,
Use at Trial and Settlement Negotiations
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THURSDAY, JULY 19, 2018
Presenting a live 90-minute webinar with interactive Q&A
Donna L. Fisher, Partner, Pepper Hamilton, Harrisburg, Pa.
Matthew J. Hamilton, Partner, Pepper Hamilton, Philadelphia
Jessica K. Southwick, Attorney, Pepper Hamilton, Philadelphia
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Donna L. FisherMatthew J. HamiltonJessica K. Southwick
Social Media Evidence: Tactics for Discovery, Use at Trial and Settlement Negotiations
July 19, 2018
Why is social media evidence so compelling?
- A candid digital record
Discovery of social media evidence
- Applicable rules
- Judicial limitations
- Best practices
Authenticating social media evidence
- Applicable rule of evidence
- Developing law
- Best practices
Social media evidence in settlement
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Overview
What Is Social Media Evidence?
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Why Is It So Compelling?
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What can go wrong?
- Unintended audiences
- Failure to foresee consequences
- Misunderstanding privacy controls
Implications for litigation go much further
- Personal injury plaintiffs
- Criminal defendants
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A Candid Digital Record
Nicolau v. Martin, 170 A.2d 990 (Pa. 2017)
Pennsylvania Supreme Court granted cert. to determine whether plaintiff’s medical malpractice claim is time-barred
A split superior court below determined that multiple pieces of evidence, including her Facebook posts, indicated she had Lyme disease more than two years before the applicable statute of limitations expired
Plaintiff argued that while she may have suspected she had Lyme, she was only able to confirm it after a test
The court, however, cited two Facebook posts that undercut that argument – “I had been telling everyone for years I thought it was Lyme . . “ to which her friend responded “You DID say you have Lyme so many times!”
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Undone by Facebook?
Some social media evidence may be public-facing and so readily available
Users may believe that their “private” social media will remain secret
- They are mistaken
Courts have repeatedly held that private social media can be relevant to the claims or defenses in a case and so subject to discovery
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Discovery of Social Media Evidence
Discovery sought must be relevant and proportional to the needs of the case
- Fed.R.Civ.P 26(b)(1)
Courts will not permit litigants to rummage at will through information that the author had taken steps to withhold from public view
Courts are struggling to keep pace with the rapid development of social media, but case law provides some guidance
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Discovery Is Not Unlimited
Decisions defining the limits of discovery of social media are relatively recent and developing in real-time
As recently as 2010, a court observed that
- Despite the popularity of [social media] and the frequency with which this issue might be expected to arise, remarkably few published decisions provide guidance on the issues
EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind., May 11, 2010)
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Applicable Case Law Remains Scarce
2017 U.S. Dist. LEXIS 149915 (S.D. Ind., Sept. 15, 2017)
Plaintiffs alleged injury from implanted IVC filter
Defendants sought Facebook account in native format as provided to plaintiffs’ expert rather than PDF format
Court found that native format provided “considerably more information” in metadata, the who, what, when, where and how of a post
Denied defendants’ request as not having made sufficient showing
Any specific request for native format must be justified
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In re Cook Med., Inc.
Court found that plaintiff has no expectation of privacy in public-facing social media
Plaintiff need not produce what defendants can find themselves
Private social media posts, however, require a more involved analysis
- Requesting party must show that the information is both relevant and proportional to the needs of the case
Granted requests for posts showing travel and activities post surgery as relevant to damages
Denied request for screenshots of “all” social media posts after surgery as not limited by subject matter
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Cook (continued)
2017 U.S. Dist. LEXIS 12927 (S.D. Ind., Jan. 31, 2017)
Plaintiffs alleged wrongfully denied overtime
Defendant sought all emails and social media posts for the year prior to plaintiffs’ employment
The court denied the request, finding that the defendant “had not shown how emails, texts messages or social media posts from this one-year period may be more probative as to these issues than other less intrusive data already within its control such as the Salesfore.com data, computer login or badge swipe data.”
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Crabtree v. Angie’s List, Inc.
2016 U.S. Dist. LEXIS 28882 (N.D. Ill., March 7, 2016)
Plaintiff sued trucking company following his daughter’s death in a tractor-trailer accident
Defendants sought complete Facebook archive of the decedent and family members
The court cautioned that Facebook and other platforms present a unique challenge given the amount of data and the length of retention
The court found that defendants had not appropriately limited their requests to the relevant time period or to content relevant to the claims and defenses
There is no “generalized right to rummage at will through information . . . limited to public view.”
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Ye v. Cliff Viessman, Inc.
2016 U.S. Dist. LEXIS 178702 (M.D. La., Dec. 27, 2016)
Plaintiff alleged “continuing, severe personal injuries.”
Defendant requested plaintiff to:
- Identify all social media sites she had used since the date of the accident, as well as her usernames and times of use
- Produce all postings relating to any type of physical or athletic activities since the time of the accident
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Scott v. United States Postal Serv.
Despite holding requested information was relevant, Court modified the requests
Required plaintiff to provide the sites and usernames, but only the last time she had been on each site, not the total time she had spent on each site
Ordered plaintiff to produce any postings since her accident that referred or related to her injuries or reflected physical capabilities that were inconsistent with the injuries alleged
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Scott (continued)
2017 U.S. Dist. LEXIS 132036 (E.D. La., Aug. 18, 2017)
Plaintiff alleged physical pain and suffering, mental anguish, and emotional distress
Defendant had obtained evidence of post-accident vacation and travel activities that contradicted claims of continuing injuries
Defendant requested a complete copy of plaintiff’s post-accident Facebook data including all metadata
Court found plaintiff’s social media records were relevant and the requests were limited in time but still
- Modified the requests to only seven discrete topics
- Denied metadata, indicating a higher standard was required
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Ehrenberg v. State Farm Mut. Auto. Ins. Co.
2017 U.S. Dist. LEXIS 36043 (D. Kan., Mar. 13, 2017)
Plaintiff asserted claims of employment discrimination and Medicare fraud
Defendant requested plaintiff to identify each social media post deleted since plaintiff’s resignation, contending request was reasonably limited in time and only asked for deleted posts
Court held “[A]llowing Defendant in the present case to have unfettered access to all of Plaintiff’s deleted and altered social networking posting would be akin to allowing Defendant unfettered access to rummage through Plaintiff’s garbage.”
Court ordered plaintiff to produce any deleted posts that referenced defendant or his employment
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United States ex rel. Feaster v. Dopps Chiropractic Clinic, LLC
312 F.R.D. 594 (D. Nev., Jan. 11, 2016)
Transgender Plaintiff asserted claims of gender discrimination, retaliation, and negligent selection, training, supervision or retention
Defendant sought medical records relating to Plaintiff’s transition and emotional distress, social media profiles and emails
Plaintiff asserted that medical records were irrelevant and that social media requests should be narrowly limited to the claimed injury
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Roberts v. Clark Cnty. Sch. Dist.
Court: “A change in the legal culture that embraces the leave no stone unturned and scorched earth approach to discovery is long overdue.”
Modified to limited social media discovery post-transition: references to lawsuit, employer’s reaction to his transition, his state of mind/response to his transition and his treatment by employer/colleagues
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Roberts (continued)
2018 U.S. Dist. LEXIS 60301 (M.D. La., April 10, 2018)
Plaintiff brought claims of retaliation, invasion of privacy and defamation against defendants
Plaintiff initially ordered to produce texts or emails exchanged with former or current employees of defendants on plaintiff’s personal cell phone or email addresses or any texts, messages or emails that had been deleted from plaintiff’s work-issued cell phone prior to its return that referenced defendants or racial discrimination
Court later expanded the order to require plaintiff to produce any messages sent or received by any of plaintiff’s social media accounts that referenced defendants or racial discrimination
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Tingle v. Hebert
Plaintiff produced no new messages or emails but produced a summary listing the 15 already-produced text messages
Plaintiff's counsel provided a verification that a search had been conducted and all responsive documents produced.
Defendants filed a motion for contempt, requested sanctions and an independent forensic examination of all computers used for Facebook Messenger or personal email
Court denied the motion, stating it had no reason to doubt plaintiff’s counsel’s verification that all responsive documents were produced
Court stated that to extent defendants suggested plaintiff deleted or destroyed emails, text messages or Facebook messages, the issue of spoliation was not properly before the court.
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Tingle (cont.)
2018 U.S. Dist LEXIS 34264 (S.D.Ind.)
Plaintiff sued his private school alleging violation of the ADA for failure to accommodate his ADHD and suspending him
The court considered plaintiffs’ objection to the magistrate judge’s order that he provide a download of his Facebook account or provide his account credentials to a consultant
After initially agreeing to provide a download, plaintiff’s counsel changed his mind, asserting that it was neither relevant nor proportional to the needs of the case since he had withdrawn his claim for counseling damages
The court denied the objection, finding that his mental state was relevant to the school’s defense
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Castelino v. Rose-Hulman Inst. of Tech.
The court, however, was careful to make clear that the Magistrate judge can only resolve disputes based upon valid legal arguments, and throughout criticized the paucity of plaintiff’s legal arguments
It does not appeal that plaintiff relied upon the most recent authority
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Castelino (Continued)
Requests must be tailored to meet the requirements of Federal Rules 26(b)(1) and 34(b) or their state equivalents
To be relevant, requests must be closely tied to the subject matter of the case
Requests must also be strictly limited by relevant time scope
Requesting parties must formulate their requests carefully as courts may not be willing to reframe them
Requests for metadata or native format production must be substantially justified by the needs of the case, or upon evidence of spoliation
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Best Practices for Discovery
Social media evidence can be powerful, but to be admitted it must first be authenticated
As with discovery, the law governing authentication of social media evidence is developing quickly
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Authenticating Social Media Evidence
Federal Rule of Evidence 901 – Authenticating or Identifying Evidence
- (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce sufficient evidence to support a finding that the item is what the proponent claims it is
- (b) Examples
• (1) Testimony of a witness with knowledge
• (4) Distinctive characteristics and the like
State equivalents
- e.g. Pa. R. Evid. 901
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Applicable Rules of Evidence
181 A.3d 1154 (Pa. Super., March 15, 2018)
Prosecution sought to introduce Facebook posts and messages allegedly authored by the defendant
To authenticate the posts and messages, prosecution presented the testimony of an expert in computer forensics
Expert testified that the screenshots proffered were from a Facebook account that bore the same name as the defendant, that listed the account holder as living in the same hometown and attending the same school as the defendant, that had been verified by a cell phone number the owner of which resided at the defendant’s physical address and bore the same last name, and several photographs
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Commonwealth v. Mangel
When asked if she could testify to a reasonable degree of computer and scientific certainty that Mangel actually posted the messages, “she could not.”
Trial court held that the prosecution had failed to prove the defendant had authored them, despite circumstantial evidence
Pa. Superior Court affirmed, noting the absence of evidence that Mangel had access to the cellular phone or any relationship with the owner of that number who bore the same last name
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Mangel (continued)
39 A.3d 996 (Pa. Super. 2011), aff’d on other grounds, 106 A.3d 705 (Pa. 2014)
Trial court had held that text messages had been sufficiently authenticated by the detective’s testimony that the phone belonged to the defendant, even though the detective had conceded that the author of the text messages could not be ascertained
Trial court held that doubts as to the identity of the sender or recipient went to the weight of evidence, not admissibility
On appeal, Pa. Superior Court discussed the difficulty with establishing authorship for emails and text messages since more than one person may use an email address or account
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Commonwealth v. Koch
Court reversed and remanded on the ground that the text messages had not been sufficiently authenticated
Further, without proof of authorship, hearsay exception for admissions of a party opponent was not applicable
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Koch (continued)
106 A.3d 705 (Pa., 2014)
On appeal, all six justices of the Pennsylvania Supreme Court held that the trial court’s acceptance of the authenticity of the text messages was not reversible error because there is not an elevated standard for text messages
Superior Court’s order was affirmed on other grounds because three justices agreed with the Superior Court’s hearsay ruling
Because the Supreme Court was evenly divided on the hearsay ruling, the Superior Court’s application of a more demanding standard for authenticating text messages was undisturbed
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Koch in the Pa. Supreme Court
878 A.2d 91 (Pa. Super 2005).
Trial court had admitted transcripts from several instant message conversations allegedly between the appellant and the victim of the attack that corroborated the attack
Superior Court examined the content of the messages, which closely matched or referenced multiple encounters between the defendant and the victim, and held that the transcripts of the instant messages were adequately authenticated
“We see no justification for constructing unique rules of admissibility of electronic communications such as instant messages.”
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In the Interest of F.P.
Court held that circumstantial evidence was sufficient to authenticate a text message
The standard applied by the Superior Court in Mangel and Koch is a departure from this decision
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In the Interest of F.P. (continued)
834 F.3d 403 (3d Cir. 2016)
Trial court admitted Facebook messages in child pornography and sexual assault case
Third Circuit found that the messages were not “self-authenticating” as held by the trial court because they were not “business records”
- However, sufficient extrinsic evidence existed to link defendant to the Facebook messages
- Minors testified as to threats Defendant through the Facebook account, and subsequent follow-up to those threats in person
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United States v. Browne
Defendant admitted that the Facebook profile was his and that he had messaged some of the minors through that account
Biographical information throughout the account matched that of defendant
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Browne (continued)
843 F.3d 653 (7th Cir. 2016)
Seventh Circuit did not need to authenticate Lewisbey’s Facebook account by circumstantial evidence because he admitted the account belonged to him
Nonetheless, the court noted that it could have easily done so – the account listed Lewisbey’s nickname, date of birth, place of residence, and residence history, and photographs of Lewisbey
Phone was admissible – had been confiscated from his control and the contents corroborated ownership
No explicit rejection of self-corroboration theory of authentication
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United States v. Lewisbey
241 F.R.D. 534 (D. Md. 2007)
Magistrate Judge Grimm
Authentication is satisfied by evidence “sufficient to support a finding that the matter in question is what the proponent claims.”
However, that the complexity and novelty of electronically stored information, with its potential for manipulation, requires greater scrutiny of foundational requirements than paper records
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Lorraine v. Markel Am. Ins. Co.
19 A.3d 415 (Md. 2010)
Criminal defendant challenged the authenticity of printed MySpace pages purporting to threaten a witness
Cited Lorraine for the proposition that social media requires greater scrutiny of foundational requirements than paper records
The prosecution did not question the girlfriend about her MySpace page but rather the lead investigator
The court found that the picture of his girlfriend, along with her birth date and location, were not sufficient distinctive characteristics to authenticate the MySpace profile, given the prospect that someone else could have created the account
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Griffin v. State
The court was careful to state that it was not suggesting that social media profiles can never be authenticated, and provided guidance as to a number of different methods
The first and most obvious would be to ask the purported creator if he or she created the profile
The next would be to search the computer or device used to create the profile because browsers and other histories can provide an evidentiary trail
A third method would be to obtain information directly from the social network itself
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Griffin (continued)
358 S.W.3d 633 (Tex. Crim. App. 2012)
Criminal defendant challenged admission of MySpace pages
The court acknowledged the three methods outlined in Griffinbut relied upon Lorraine for the proposition that “there is no single approach to authentication that will work in all instances.”
The court held that Tienda’s profile contained sufficient identifying details to support a finding that the page belonged to him and that he created and maintained them
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Tienda v. State
448 N.J. Super. 78 (Super Ct. App. Div. 2016)
Defendant challenged the authentication of a tweet that displayed her profile picture and twitter handle
The victim testified that she recognized the tweet as written by the defendant because of the photo and captured the screen
The court rejected the suggestion that authentication can only be done by the three methods in Griffin or that courts should apply greater scrutiny when authenticating information from social networks
With regard to the fear that social media information can be falsified, the court noted that a letter can just as easily be forged as a tweet
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State v. Hannah
Establish that the account or phone number is registered in the purported author’s name, including address
Confirm that there are no other accounts bearing the same name
Establish the purported author’s exclusive access to the account or phone
Demonstrate that the circumstances and content of the messages or postings correlate closely to relevant events to which the other party has testified or admitted
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Best Practices for Authentication
Just like any other type of evidence, but potentially more impactful, particularly at the claim or pre-complaint stage
Incriminating posts, updates, live videos and social media conversations can give insurance companies solid grounds for denying the claimant’s claims outright or to force the claimant into accepting a lower settlement
Such evidence may also dissuade a claimant from filing suit in the first place
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Social Media Evidence in Settlement
Should a claimant file suit in the face of social media evidence that undercuts their claim of liability or their asserted damages, settlement discussions can focus on those facts
Any evidence that goes against the claimant’s claims can be used to not only chip away at the individual’s chances of winning at trial, but also to reduce his or her likelihood of walking away from mediation or settlement negotiations with a substantial award
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Social Media Evidence in Settlement
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Matthew J. Hamilton215.981.4053
Jessica K. Southwick215.981.4122
Donna L. Fisher717.255.1166