Denial of “Twitter Appeal”

The New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

Among the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.

The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.

Let’s Ask Dad About the Attorney-Client Privilege

The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.”  The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).

The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.

The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.

The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request.  Armstrong, at *14-15.

Bow Tie Law

Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.

It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.

However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?

We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.

The No Fly Zone of Producing An Entire Facebook Profile

The airline Defendant in a slip-and-fall case at an airport brought a motion for Plaintiff to produce her entire Facebook profile, including the private sections. Magistrate Judge R. Steven Whalen denied the motion. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012).

The Court quickly recognized that information posted that is accessible only to a select group of “Friends” is generally neither privileged nor protected by privacy rights based in either common or civil law.  Tompkins, at *388. With the above in a holding pattern, the Court stated the following:

Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Tompkins, at *388.

Judge Whalen held that the Plaintiff’s public postings did not show the private posts were relevant.  The Court explained that a public photo of the Plaintiff holding a small dog and another of the Plaintiff standing with two people at a birthday party were not inconsistent with her injury or the medical information already produced. Tompkins, at *388-389. As the Court explained: 

[B]ased on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.

Tompkins, at *389.

The Court also held the request for the entire Facebook account was overly broad, because it could “contain voluminous personal material having nothing to do with this case.”  Tompkins, at *389.

Bow Tie Thoughts

Relevancy has not been “un-friended” because of social media in discovery. Just because a party has a social media profile, does not mean that the entire profile might be relevant to a case.

There are times when the production of an entire social media profile is justified, because it contains relevant information. However, as with cases where the production of a hard drive is warranted, the producing party must review for both relevancy and whether any communications are privileged. Such a situation may include private messages exchanged between a husband and wife. These private social media communications would then be no different than email.

Psychic Discovery

There is no psychic privilege. However, the legal tealeaves foretell a discovery dispute between online psychic advice and the Stored Communication Act.

Judge Frank Maas had to interpret the legal Tarot Cards in an employment dispute involving a Plaintiff who sought online psychic advice.

The Defendants sought discovery from the third-party online advice and consulting service, as the subject matter of the communications arguably were relevant to the lawsuit.  Glazer v. Fireman’s Fund Ins. Co., 2012 U.S. Dist. LEXIS 51658, 9-10 (S.D.N.Y. Apr. 4, 2012).

The third-party was a “…platform for on-line advice and professional consulting services.” Glazer, at *2.  The consulting services included many professions, including legal services. Id.

The Plaintiff “chatted” with a psychic on advice pertaining to her job, work performance and other issues the Defendant argued were relevant to the lawsuit. Further, the Plaintiff would email excerpts from her chat sessions to her work email account. Glazer, at *2-3. The Plaintiff closed her account in November 2011 and deleted her old chats sometime before closing her account. Glazer, at *3.

The third-party opposed the discovery request, arguing the Plaintiff could open a new account and access her old chats herself. Glazer, at *4-5.

The Plaintiff argued that the Stored Communication Act proscribed the third-party from producing chat transcripts, because an electronic communication service (“ECS”) provider may “not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Glazer, at *5-6, citing 18 U.S.C. § 2702(a)(1). The Plaintiff further argued that a remote computing service (“RCS”) provider may not “knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service.” Glazer, at *6, citing § 2702(a)(2).

The Court stated that the third-party was either a RCS or ECS, or both, but there was a questions whether the communications were electronically stored under the Stored Communication Act.  Glazer, at *6-7.

The Court effectively decided to avoid the SCA issues, including whether the communications were electronically stored or whether the Plaintiff consented to their disclosure.  Instead, the Court “directed” the Plaintiff to consent to the disclosure of relevant chats.  Glazer, at *9. The Court stated:

Indeed, even if the Court were to conclude that the SCA is inapplicable to the discovery that Fireman’s Fund seeks, it would make more sense to require that Glazer produce the relevant communications herself, with LivePerson needing to do so only to the extent that Glazer cannot.

Glazer, at *9-10.

Based on the above, the Court ordered the Plaintiff to do the following:

Open a new account

Retrieve all available paid chat transcripts

Produce non-privileged electronic copies to the Defendant

Glazer, at *10.

Judge Maas did not place any subject matter restrictions on the chat transcripts, because the material the Defendants presented to the Court was “relevant for at least discovery purposes.” Glazer, at *10.

Bow Tie Thoughts

I think Judge Maas got this case right on producing ESI highly comparable to social media information. Instead of propounding discovery on third parties with lengthy analysis of the Stored Communication Act, or compelling a producing party to surrender their login credentials to a requesting party, the burden should be on the producing party to review and produce relevant electronically stored information.

Discovery over email does not require passwords and login credentials being surrendered to a requesting party to review email messages at will.  Moreover, cases involving the mirror imaging of hard drives do not allow a requesting party to review the entire contents of someone’s digital life. In most situations, the producing party can review for relevance or privilege.

Social media should be no different. Relevancy should not ignored simply because of “friend requests” or Tweets.

Social Networking in Wrongful Termination Cases

“Tweets” and “status comments” on social networking sites appear in lawsuits of all shapes and sizes. Wrongful termination cases are certainly no exception to this growing trend.

In Smizer v. Cmty. Mennonite Early Learning Ctr., the Plaintiff claimed he was the subject of gender discrimination, because he was terminated for being tardy and having a messy classroom. Smizer v. Cmty. Mennonite Early Learning Ctr., 2011 U.S. Dist. LEXIS 102212, at *1-2 (N.D. Ill. Sept. 7, 2011).

The Defendant claimed the reason for the Plaintiff’s termination was because of “a troubling Facebook posting” the Plaintiff made about the Defendant’s employees. Id.

The Plaintiff sought certain discovery regarding female employees tardiness and lack of classroom cleanliness to show these were “not reasonable bases for firing him while his female counterparts remained employed.” Smizer, at *2.

The Defendant claimed this discovery was irrelevant, because no female employee was terminated for a Facebook status message, thus there were no similarly situated female employees.  Id.

The Court disagreed, allowing discovery of female employee timecards and classroom cleanliness.  Smizer, at *2-3. The Court stated:

Rule 26 of the Federal Rules of Civil Procedure makes clear that at the discovery stage, information requested must be “reasonably calculated to lead to the discovery of admissible evidence.” While CMELC claims now that Smizer’s Facebook posting was the sole cause of his termination, Smizer has provided the Court with ample documentation from within CMELC indicating that CMELC claimed at various other times that there were other reasons for his termination, including his tardiness and lack of cleanliness. By raising these other justifications, CMELC opened itself up to related discovery if for no other reason than that “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.” Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010). Because CMELC’s various justifications for firing Smizer may therefore be admissible at trial, evidence about the validity of those justifications may also be relevant. At least some of Smizer’s requests are therefore reasonably calculated to lead to the discovery of admissible evidence.

Smizer, at *2-3.

In Dollman v. Mast Industries Inc., the Plaintiff sought to introduce at trial a status comment of her former manager that the manager was not getting sufficient sleep because of an unlawful activity.  Dollman v. Mast Indus., 2011 U.S. Dist. LEXIS 99802, 10-12 (S.D.N.Y. Sept. 6, 2011)

The manager denied making the status comment, claiming that her former boyfriend made the comment on her profile after hacking her account. Dollman, at *11.

The Court quickly fired multiple torpedoes to sink admitting the status comment at trial.  First, the Court found the message to have “no possible relevance.” Dollman, at *12. Secondly, the Court found the message could be classified as “banter.”  Third, even if the message was true, admitting it would unfairly prejudice the Defendant, embarrass the manager and “draw the jury’s attention away from the probative facts.”  Id.

Bow Tie Thoughts

In one of the above cases, a party tried to use social media as a shield against further discovery; in the other, a sword to attack a witness’ credibility.

Courts have always been the guardians of the justice system to ensure the truth is discovered in a lawsuit.  This duty has become more complex with litigants living their lives on social networking sites. Courts will continue to evaluate what is reasonably calculated to lead to the discovery of admissible evidence and what is nothing more than a prejudicial distraction from the merits of a case.

Recognizing Reality with Preserving Social Media ESI

In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.

The Plaintiff first argued that the Defendant failed to preserve his Facebook pages in PDF format, because the Defendant took down the pages after the Plaintiff sent a take down notice.  Katiroll Co., at *9.

The Court held sanctioning the Defendant for following a take down request would be unjust, even if the Plaintiff’s take down notice was not legally proper.  Katiroll Co., at *9, fn 1.

The Plaintiff also argued that the Defendant changing his Facebook profile photo with infringing trade dress led to the loss of discoverable evidence.  The Court very reluctantly clicked “Like” on this argument, but did not impose any sanctions.  Katiroll Co., at *9-11.

The parties agreed that when a user changes a Facebook profile photo, the user changes the photo associated with each status message or post they have done in the past.   Katiroll Co., at *9.

The Defendants argued that sanctions were not warranted, because the Facebook profile was a public website, which the Plaintiffs could have preserved themselves.  Katiroll Co., at *10.

The Court noted that case law has held that public websites are still within the control of those who own the websites.  Katiroll Co., at *10.

The Court described the Defendant’s position as “an attempt to “pass the buck” to Plaintiff to print websites that Defendants are obliged to produce.”  Katiroll Co., at *10.

The Court found that the Defendants were in “control” of the Facebook profile, stating:

“Given that Defendants have a discovery obligation to produce them and that only Defendants knew when the website would be changed, it is more appropriate for Defendants to have that burden.” 

Katiroll Co., at *10.

However, the Court acknowledged that changing a Facebook profile photo is a “common occurrence” and users often change their profile photos weekly.  Katiroll Co., at *10-11.

The Court stated it was not surprising the Defendant changed his profile photo during the litigation and further that the Defendant did not realize that changing his profile photo would “undermine discoverable evidence.”  Katiroll Co., at *11.

The Court held that the spoliation was unintentional, however, there was some prejudicial loss to the Plaintiff.  Katiroll Co., at *11.

The Court constructed the following solution:

Defendant was to coordinate with the Plaintiff to change his profile photo back to the infringing photo.  This would not be an additional act of infringement.

The Plaintiff would print any of the posts they considered made their case.

The Defendant would change his profile photo to a non-infringing photo immediately after the Plaintiff printed the posts they needed.

Katiroll Co., at *11-12.

Bow Tie Thoughts

The Court did a respectable job recognizing the realities of social media usage, control of public profiles and constructing a remedy for the preservation and production of the ESI that did not sanction the Defendant.

The preservation of electronically stored information on social media websites can cause a headache in determining the right method to preserve it.  Given the number of iPhones and Droids in use, status messages, photo uploads and email can be created almost non-stop.

The simplest method is to simply print the Facebook profile, either as a hard copy or a PDF.  Screen captures are another option.  There are additional specialty software solutions for capturing websites such as HT Track and others designed for social networking sites such as Nextpoint. There are many tools on the market currently and others will continue to be developed in the future.

Argumentative & Prejudicial Social Media Exhibits

In a case originating from a police shooting, the Plaintiffs included in their complaint a screen capture of the shooting officer’s MySpace page.  Rice v. Reliastar Life Ins. Co., 2011 U.S. Dist. LEXIS 32831, 11-13 (M.D. La. Mar. 29, 2011).

The MySpace page included a 1960s era photo of Clint Eastwood in Old West gunslinger attire with the caption, “How I feel most of the time!!!!”.  Rice, at *4.  The image was captured a week after the shooting.  Rice, at *3.

The Defendants brought a motion to strike the section of the Complaint pertaining to the MySpace profile pursuant to Federal Rule of Civil Procedure Rule 12(f), which allows a Court to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.”  Rice, at *6.

The Court struck the MySpace related paragraphs and exhibit, because 1) it was “merely argumentative and prejudicial” and 2) did not “add to the substantive allegations of the complaint.”  Rice, at *11.

The Court further explained the MySpace exhibit was “particularly prejudicial,” because there was no evidence linking it to the police officer as his MySpace profile.  Rice, at *11-12.  As the Court explained:

Deputy Arnold’s name is nowhere on the page, and defendants represent to the Court that the photograph on the page is not of Deputy Arnold or of any other defendant in this case and has no connection to the incident at issue in this case whatsoever.

Rice, at *12.

The Court determined the allegations centered on the MySpace Exhibit was simply “name calling,” which was inappropriate in the pleadings.  Rice, at *12.

Bow Tie Thoughts

Social media enables people to live public lives.  If in a lawsuit, it is a given the parties will not only be searched on Google or Yahoo, but in Facebook and MySpace for informal discovery.  However, just because someone is posting information online does not mean it is relevant.

Additionally, information gathered online is still bound by rules of pleading and evidence.  Even if the above MySpace information had not been struck from the complaint, there would have been evidentiary issues with authentication, hearsay, and the prejudicial effect outweighing the probative value of the evidence.