By Audra Dial and Chiaman Wang [1. Audra Dial is a partner with Kilpatrick Townsend & Stockton LLP, specializing in complex patent and trade secret litigation. Chiaman Wang is an associate with Kilpatrick Townsend & Stockton LLP, specializing in complex business and trade secret disputes.]
In today’s information age, Facebook, MySpace, LinkedIn, and Twitter are ubiquitous. These social media websites are updated on a daily, if not hourly, basis, and contain a wealth of personal information, including a user’s present state impressions. Litigators can use these resources to find evidence helpful to prosecute or defend a claim, to impeach a witness, or even to uncover possible bias in a juror. Under some circumstances, social media content is readily accessible without any significant expenditure of time or money, even without engaging in the formal discovery process. If formal discovery is needed to access certain “private” sections of a social media website, these sections may offer both current and historical data that may prove to be immensely helpful in litigation.
As helpful as this information may be, counsel must also protect their clients from its downfalls. Clients who tweet or post comments about their case could put sensitive information at risk. Regardless of whether one seeks to use or prohibit access to social media websites, counsel must make certain that they satisfy their traditional professional obligations in doing so.
Taking Advantage of the Opportunities of Social Media in Litigation
Information from social media websites may be accessed both prior to and during litigation and may be accessed both formally and informally. Because of the pervasive use of social media websites, a significant amount of information is presently available. As such, litigators must take advantage of these novel opportunities to gather even more information about their opponents, witnesses, jurors, and even the judge.
1. Informal Investigations of Social Media Websites Are Both Cost- And Time-Efficient
[pullquote]Just a few clicks of a mouse and all of this information could be at a diligent litigator’s fingertips without the expense of the formal discovery process, which cost is often exacerbated by objections and vague discovery responses.[/pullquote]Given the prevalence of social media websites, these resources should always be included in one’s arsenal of case-related research. A quick review of the opposing party’s Facebook page will likely reveal, at a minimum, his or her marital status, present location, and date of birth. A glance at the LinkedIn profile of a witness will disclose his or her work history, including the positions held, the names of current and former employers and possibly co-workers, and the duration of the employment. Just a few clicks of a mouse and all of this information could be at a diligent litigator’s fingertips without the expense of the formal discovery process, which cost is often exacerbated by objections and vague discovery responses.
Although this information may be readily available on social media websites, accessing this information must be done within the confines of ethical standards. Counsel may certainly access public portions of websites, even the websites of represented parties or witnesses. Counsel should not, however, submit “friend requests” to these same people because these requests may violate the rule prohibiting contact with represented parties outside their counsel’s presence. See ABA Model Rule 4.3 (“[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….”). Even when dealing with unrepresented parties and witnesses, counsel may not misrepresent their identity or hire independent third parties to access information under false pretenses through social media websites. For example, Attorney X cannot pretend to be John Smith to gain access to an unrepresented party’s MySpace page. Similarly, Attorney X cannot hire Jane Doe to access an unrepresented party’s MySpace page without also requiring Ms. Doe to disclose her affiliation with Attorney X. Such actions are generally considered deceptive and thus violate the prohibition against lawyers engaging in dishonest or deceitful conduct. See ABA Model Rule 8.4 (“It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation….”).
Given all of the information that is available on social media sites, litigators should ensure they avail themselves of these websites when investigating their cases and preparing for trial. This information is readily and legally accessible, provided that it is obtained within the confines of the rules governing professional conduct
2. Formal Discovery of “Private” Sections of Social Media Websites May Provide a Wealth of Information
Federal Rule of Civil Procedure 26 broadly allows the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” As a result of the breadth of Rule 26, courts have permitted discovery of “private” portions of a party’s social media website. Courts have reached this conclusion in part because social media content is not privileged and is not protected by any privacy expectations. See, e.g., Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012) (social media websites are “neither privileged nor protected by any right of privacy”); Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Com. Pl. Nov. 8, 2011) (concluding plaintiff had “no privacy rights in her Facebook postings, and there is no general Facebook social networking privilege”).
Although content from social media websites may be discoverable, discovery requests must be carefully crafted to be “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). As with traditional discovery, litigators seeking information from social media websites are not “allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance”. Davenport, 2012 WL 555759, at *1. Accordingly, courts are heavily inclined to grant access to private sections of social media websites when the party seeking discovery can direct the court’s attention to specific information from the public portions of the same website that is relevant or even contradictory to previous statements made during discovery or in pleadings. See Largent, 2011 WL 5632688 (granting full access to plaintiff’s Facebook page because there were public photos contradicting plaintiff’s prior statements); Romano v. Steelcase Inc., 30 Misc. 3d 426, 430, 907 N.Y.S.2d 650 (Suffolk Cnty. 2010) (granting full access to plaintiff’s Facebook and MySpace accounts because “the public portions of plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony”).
To ensure one is carefully preparing his case, counsel should take advantage of researching all publicly available information, as such information may then reveal the relevance of private sections of the social media website. If successful in establishing the relevance of the private portions, a party may be rewarded with full access to the opponent’s social media website, including current and deleted content such as photographs, postings, and even conversations. See Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011) (ordering plaintiff to “provide all passwords, user names and log-in names for any and all MySpace and Facebook accounts”); Romano, 30 Misc. 3d at 435, 907 N.Y.S.2d at 650 (granting access to plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”). Access to this information provides an opportunity to discover a wealth of information that may assist counsel in prosecuting or defending her case.
Protecting Your Clients From the Pitfalls of Social Media
Although social media websites contain an abundance of personal information about one’s opponents, this information is equally discoverable from one’s own clients. As such, lawyers should counsel their clients on the risks of maintaining active social media websites, especially during litigation.
As an initial matter, individuals should set their privacy settings to exclude access to their site by the general public. In addition, clients should be advised to reject any new “friend requests” from unknown contacts. [pullquote]The less information available in the public portions of a social media website, the less likely an opposing party will be able to gather the requisite information to show that the private portions could be relevant.[/pullquote] Importantly, clients should also refrain from posting, tweeting, or commenting on aspects of their case during the pendency of litigation. The less information available in the public portions of a social media website, the less likely an opposing party will be able to gather the requisite information to show that the private portions could be relevant. In the absence of such a showing, courts will not authorize discovery into private portions of a party’s social media website. See Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 WL 179320, at *2-3 (E.D. Mich. Jan. 18, 2012) (denying request for access to plaintiff’s Facebook account because nothing in the public portions indicated the relevance of the private portions).
Depending on the nature of the claims and the client’s use of social media, it may be advisable for clients to deactivate their social media accounts as soon as litigation is contemplated. This action will ensure that potentially privileged information is not revealed. Although litigators may recommend the deactivation or decreased use of such sites, counsel must not recommend that their clients “clean up” or delete potentially negative posts, photographs, or tweets when litigation is reasonably anticipated or ongoing. The deletion of any social media content that could be relevant will likely constitute spoliation and such destruction will subject both the attorney and client to sanctions.
For example, in Lester v. Allied Concrete Company, No. CL08-150 (Va. Cir. Ct. Sept. 1, 2011), defendants submitted discovery requests seeking certain contents of plaintiff’s Facebook pages. Upon receipt, plaintiff’s counsel advised his client to delete certain photographs on his Facebook account and stated, “we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace.” In compliance with his counsel’s instructions, the client deleted 16 photographs and thereafter deactivated his Facebook account. Plaintiff’s counsel submitted the following discovery response the day after this deactivation: “I do not have a Facebook page on the date this is signed.” The court concluded that plaintiff’s counsel’s actions were sanctionable, awarding the defendants the attorneys fees that they incurred in pursuing the Facebook data. The court also referred plaintiff’s counsel to the Virginia State Bar “for any action it deems appropriate.” As for the plaintiff, the court awarded monetary sanctions against him and also referred perjury allegations against him to the prosecutor’s office for potential criminal prosecution. As the Lester case makes clear, severe sanctions can be imposed for the intentional destruction of social media content. Thus, it is important to ensure that any suggestions regarding the use or non-use of social media during litigation are also coupled with clear instructions not to delete or remove any content that is currently or was previously on the client’s social media websites.
Social media can be both a litigator’s dream and nightmare. At times, it may lead to immensely helpful information and, at others, it could destroy a client’s credibility. As such, counsel must ensure they take advantage of the benefits of social media websites during pre-suit investigations and discovery while simultaneously protecting their clients from its pitfalls and ensuring that information contained on these sites is preserved for discovery. Preservation of the contents of social media is very important and will become increasingly so as the use of social media sites continues to grow.