Tools of the Trade

Top 10 Tips - Procedure and Tactics for Requesting and Obtaining Evidence
guest author: Ryan M. Springer

Social network sites [SNS] have hundreds of millions of users. Billions of photographs are uploaded and hosted on these sites. For personal injury lawyers and their staff, it is no longer a matter of whether or not to include SNS in case preparation and discovery, it is a matter of how to do it.

Here are some practical tips for requesting and obtaining evidence:

  1. Don't Commit A Crime.
    1. Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.

      "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include (A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. 18 U.S.C. § 2510(12)
    2. Stored Wire and Electronic Communications Act., 18 U.S.C. § 2701, et seq.

      If you are unfamiliar with this law, Facebook will tell you all about it once it receives your subpoena. It governs voluntary and compelled disclosure of "stored wire and electronic communications and transactional records."   It prohibits the unauthorized access of internet communications. See Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J., 2009) (unpublished slip op.) (holding that defendants, the plaintiff's employment managers, impermissibly accessed an internet chat group and the plaintiff's social networking sites).

      For a more comprehensive discussion of these laws and their application to social media discovery, see Ryan A. Ward, Discovering Facebook: Social Network Subpoenas and the Stored Communications Act, 24 Harv. J.L. & Tech 563 (2011) (available online at http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf)
  1. Don't Commit A Tort or Ethical Violation.
    1. Invasion of Privacy ("Unreasonable Intrusion Upon the Seclusion of Another"): See Pietrylo v. Hillstone Restaurant Group,2009 WL 3128420 (D.N.J., 2009) (unpublished slip op.).
    2. Follow the "No Contact" Rule. See Rule 4.2 ABA Model Rules of Professional Conduct:

      "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."

      It is likely a bad idea to send phony friend or contact requests from "sock" accounts. Don't let your employees or agents do it either. See Rules 4.1, 5.1, and 5.3, ABA Model Rules of Professional Conduct.
  1. Don't Reinvent the Wheel: It's Still Discovery. The Federal Rules of Civil Procedure, as well as most state rules, require that discovery be limited to that which is "reasonably calculated to lead to the discovery of admissible evidence."  Fed. R. Civ. P. 26(b)(1). That is the guiding principle for all discovery, including SNS Discovery. As the court explained in EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind. May 11, 2010):
    1. Discovery of [social networking sites ("SNS")] requires the application of basic discovery principles in a novel context. And despite the popularity of SNS and the frequency with which this issue might be expected to arise, remarkably few published decisions provide guidance on the issues presented here. At bottom, though, the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather, the challenge is to define appropriately broad limits - but limits nevertheless - on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties....
      Id. at 434.
  1. Find a "Doe" Party.
    1. In DFSB Kollective Co. Ltd. v. Jenpoo, 2011 WL 2314161 (N.D. Cal., 2011), the plaintiffs in a copyright violation action sued a defendant named "Michael Jenpoo," which they believed to be an alias. The plaintiffs were granted leave to conduct early discovery to ascertain the true identity of Michael Jenpoo by serving subpoenas on various social media sites including Facebook MySpace and Twitter.
  1. Identify Screen Names, Pseudonyms, Avatars, Aliases, or other Online Identities.
    1. Include formal written requests for online aliases in your interrogatories; simply add this to other requests for personal identification.
  1. Preserve the Evidence.
    1. Send letters to social media sites identifying accounts and online content and request preservation of those files online or as caches or backups during the pendency of litigation.
      1. Facebook: Preservation Letters and Subpoenas (Facebook will accept service in person or by fax or mail, but only accepts California subpoenas; see your state's interstate discovery rules and/or the Uniform Interstate Depositions and Discovery Act).
        Facebook
        1601 S. California Avenue
        Palo Alto, CA 94304
        Attn: Security Department
        Fax Number (650) 644-3229
      2. Twitter (Twitter will accept service in person or by fax or mail).
        Twitter, Inc.
        Attn: Trust & Safety
        795 Folsom Street
        Suite 600
        San Francisco, CA 94107
        Fax Number (415) 222-9958
      3. MySpace (MySpace only accepts personal service).
        MySpace
        Attn: Custodian of Records
        2121 Avenue of the Stars, Suite 700
        Los Angeles, CA 90067
      4. Provide as much of the following information as is available on the following:
        • Your full contact information
        • Response due date (allow 2-4 weeks)
        • Full name of user
        • Full URL to user's SNS profile
        • School or other networks
        • Birth date
        • Any known email addresses
        • Period of activity
  1. "Informal" Discovery - "Web Snooping"
    1. Preserves the Element of Surprise
    2. The Sooner the Better
    3. Many users still keep their profiles public - you can see everything. Make screen captures and SAVE IT ALL.
    4. Bookmark the site and go back regularly - new information is added daily.
  1. Establish a Factual Predicate to Compel Discovery.
    1. Legitimate Discovery vs. "Fishing Expeditions"

      Although SNS content is generally neither privileged nor protected by any right of privacy, "[a] request for discovery must still be tailored . . . so that it 'appears 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 [SNS] account[s].'"  Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 (M.D. Fla., 2012) (slip copy) (citing Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320, at *2 (E.D. Mich. Jan. 18, 2012)).

      In Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, --- N.Y.S.2d ---- (N.Y.A.D. 1 Dept., 2013), the court upheld the denial of a defendant's request for access to post-incident Facebook postings, as well as a request for in camera inspection of such postings. The court held:

      [T]hat plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account - that is, information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims."

      Defendants' argument that plaintiff's Facebook postings "may reveal daily activities that contradict or conflict with" plaintiff's claim of a disability amounts to nothing more than a request for permission to conduct a 'fishing expedition."
      Id. at *1 (quoting Patterson v. Turner Constr. Co., 88 A.D.3d. 617, 618, N.Y.S.2d 311 [1st Dept. 2011] and McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 910 N.Y.S.2d 614 [4th Dept. 2010]; see also Kregg v. Maldonado, 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301 [4th Dept. 2012].

      A Montana court adopted a similar approach to SNS discovery:

      The content of social networking sites is not protected from discovery merely because a party deems the content "private." See E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D.Ins.2010); Glazer v. Fireman's Fund. Ins. Co., 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012). But other courts, like the court in Romano, have charged a course that allows discovery of a plaintiff's social networking site content where the defendant makes a threshold showing that publicly available information on those sites undermines the plaintiff's claims. See e.g., Thompson v. Autoliv ASP, Inc., 2012 WL 2342928 *4 (D. Nev. June 20, 2012) (allowing discovery where material obtained by defendant from plaintiff's public Facebook account negated her allegations that her social networking site accounts were irrelevant); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388-89 (E.D.Mich.2012) (denying discovery as overly broad where publicly available information was not inconsistent with the plaintiff's claims); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa.Com.Pl. Sept. 9, 2010); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa.Com.Pl. May 19, 2011). Courts requiring such a showing do so, at least in part, to guard against the "proverbial fishing expedition." Tompkins, 278 F.R.D. at 388. As the Tompkins court explained it, a "[d]efendant does not have a generalized right to rummage at will through information that [p]laintiff has limited from public view." Tompkins, 278 F.R.D. at 388. Absent some "threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence," a "[d]efendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in [p]laintiff's Facebook account." Tomkins, 278 F.R.D. at 388. The Court agrees with this circumspect approach to the discovery of social networking site content.
      Keller v. National Farmers Union Property & Cas. Co. 2013 WL 27731, *4 (D.Mont. 2013) (unpublished slip op.).

      In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.Sup., 2010), the court permitted disclosure of information the plaintiff in a personal injury action posted to social networking sites that was "material and necessary" for defendant's defense. The court explained:

      Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action. Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury."
      Id. at 652-53 (noting that "injury" includes claims for loss of enjoyment of life) (internal citations omitted).

      In Bass ex rel. Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn., 2009), the defendant in a personal injury action narrowly tailored its discovery requests seeking text messages and Facebook posts that were "related to [Plaintiff's] alleged teasing and taunting," as well as "all documents representing or relating to communications...related to the allegations in" the complaint. Id. at *1. Based on the relevancy of the requests, the court ordered production.

      But in McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 2010 NY Slip Op 08181, a court denied the defendant's request to access the plaintiff's Facebook account. The defendant argued that it was entitled to access to discover "whether [the] plaintiff sustained a serious injury in the accident." The court held that in making the discovery request, the defendant "failed to establish a factual predicate with respect to the relevancy of the evidence," but reversed the lower court's decision precluding the defendant from seeking access in the future.
    2. The "Two Pronged" Approach: Fawcett v. Altieri, 2013 WL 150247 (N.Y.Sup. 2013) (unpublished slip op.):
      A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. This inquiry requires a determination by the court as to whether the content contained on/in a social media account is "material and necessary;" and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights.
      Id. at *1.
    3. In Camera Inspection: In Offenback v. L.M.Bowman, Inc., 2011 WL 2491371 (M.D. Pa. 2011) (unpublished slip op.), the defendant in a personal injury action sought access to the plaintiff's MySpace and Facebook accounts. Originally, the defendant requested unrestricted access, which the plaintiff refused. Subsequently, the court ordered an in camera inspection, prior to which both parties wrote letters to the court. The court reviewed the pleadings, including the plaintiff's claims that he experienced anxiety in traffic situations and other physical limitations. The court was given access to the plaintiff's Facebook account (the MySpace account was no longer accessible) where it discovered photographs of the plaintiff riding a motorcycle, planning motorcycle trips, and other activities relevant to the nature and extent of his injuries. The court ordered that these photographs be disclosed to the defendant.

      In Barnes v. CUS Nashville, LLC, 2010 WL 2265688 (M.D. Tenn., 2010) (unpublished slip op.), the magistrate judge created a Facebook account in order to gain access to the plaintiff's profile "for the sole purpose of reviewing photographs and related comments in camera."
      Id. at * 1.

      In both Offenback and Barnes, the court admonished the parties for not simply cooperating about the disclosure of relevant materials. As the court in Barnes stated:
      Cooperation on the part of both parties could have prevented this delay. The Defendant's mishandling of the Facebook subpoena was the cause of a major delay. Plaintiff's counsel could have helped resolve the matter by clearing up the issue of the various witnesses, who are friends of the Plaintiff, to produce the various photos on Facebook. Their resistance does raise the specter with the defendant that there is something there they want to hide. Clearly the issue of who took the pictures of the Plaintiff and her friends dancing on the bar is highly relevant, and Plaintiff is in the best position to quickly resolve this. The failure to cooperate by both counsel has lead [sic] to this unfortunate delay. The Magistrate Judge strongly suggests that the parties avoid additional prolonged disputes over Facebook materials....
      Id. at *1.
      Some courts are resistant to permitting in camera review, however:
      [A]sking courts to review hundreds of transmissions 'in camera' should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim. While several courts have frequently assigned the 'in camera' review to 'special masters,' the fees to be paid to those special masters should be paid by the party seeking such discovery in a tort case, but which may be shared by the parties in a commercial or matrimonial matter.

      Fawcett v. Altieri, 2013 WL 150247, *4, (N.Y.Sup. 2013) (unpublished slip op.).
  1. "Print Screen" is Your Best Friend
    1. Print Screen for Windows PC

      You can use your computer's print screen function capture the image of your screen. There are two types of screen captures you can take: the entire screen, or just the active window. For example, if you have three programs open at the same time, you might want a screen capture of only the active window. To copy the entire screen, press the PRINT SCREEN key (PRTSC or PRTSCN on some keyboards). To copy only an active window, press Alt + PRINT SCREEN. You can then paste (Ctrl +V) into a document, e-mail message, or other file.
    2. Print Screen for Mac

      There is no "Print Screen" key on Mac keyboards. Instead, hold down the Apple/Command + Shift + 3. This takes a screenshot of the full screen; you can save the image as a separate file. Apple/Command + Shift + 4 allows you to select an area of screen to capture. Apple/Command + Shift + 4, then hitting the space bar, then clicking a window will capture the contents of the window in a screenshot.
  1. Get it Admitted - Authenticate the Evidence.
    1. Obtain admissions in deposition or by written discovery.
    2. This is tricky where the username is a pseudonym. Get the witness to admit that he or she posts under the pseudonym. See B.M. v. D.M., 2011 WL 1420917 (N.Y. Sup. 2011). You may need to hire an information technologist or other forensic expert to help you authenticate the information.

 

Ryan M. Springer is an attorney with G. Eric Nielson & Associates in Salt Lake City, Utah. He graduated with honors from the University of Utah and earned his J.D. degree from Brigham Young University. Mr. Springer's professional practice focuses on catastrophic personal injury cases and medical malpractice. He has been repeatedly recognized as a Super Lawyer and one of Utah's Legal Elite. Mr. Springer has successfully recovered millions of dollars on behalf of victims of careless acts and omissions, and has experience in state and federal courts at both trial and appellate levels. He also has presented to both attorneys and various professional groups on subjects including Utah State Constitution, tort law and policy, and professional standards of care.

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