Your adversary in litigation may be posting information online that could help you win your case. Social networking websites such as Facebook, Twitter, and MySpace have exploded in popularity in the past several years. Every month Facebook users post 30 billion pieces of content, such as comments, photos, videos, news stories, and web links. Ninety-five million short messages or “tweets” are posted every day on Twitter. For example: “I had such a great run this afternoon. 5 miles today. I’m going to go for 6 miles tomorrow.” This tweet would be a key piece of evidence to an attorney defending a personal injury case where the plaintiff claims he can no longer run due to his injuries. There is a good chance that many of your opponents are users of social media. They may be posting information that could make your case. Often a user’s information is publicly available and can be accessed by anyone with an internet connection. Even though a Facebook user can limit access to a list of other approved users, courts are increasingly granting access to “private” social media accounts.
How is social networking data relevant?
The basic information many Facebook users share includes relationship status, employment information, educational background, religious affiliation, political views, hobbies and interests, address and phone number, and web links to the user’s other websites or blogs. Beyond this basic profile content, Facebook users post photos, videos, and comments on a myriad of topics ranging from where they go on vacation to the jobs they have and the status of their health. This content can be relevant, admissible evidence in many types of cases.
Personal Injury Cases
In personal injury cases the extent or existence of a plaintiff’s injuries is often disputed. Dishonest plaintiffs may post photos or videos online that contradict their injury claims. Personal injury plaintiffs who claim they are unable to do the activities they once enjoyed may post photos or publish comments that reveal that their claims are exaggerated or simply untrue. A defense attorney who knows how to search Facebook might find photos of a plaintiff lifting his child high in the air or playing golf. Where the same plaintiff alleges that the disputed accident caused him to sustain permanent, severe back injuries, the photos may defeat or significantly diminish the value of his personal injury case. In these cases, mining social networking websites for information can take the place of hiring a private investigator investigator to conduct surveillance.In a recent Federal District Court case in California, the plaintiff claimed that after the accident at issue, his life was constantly “hell on earth.”1 Yet, in one MySpace comment he wrote that painting is “a frustrating activity when his arm hairs would get caught in paint.” This post was written after the accident in the present tense, leading the court to conclude that the plaintiff actually could engage in activities he claimed the accident had precluded him from doing. Painting was on the plaintiff’s list of activities that were adversely affected by the accident. The court agreed that the plaintiff incurred some general damages attributable to the accident, but found that the evidence including his online postings about painting belied his claim of constant pain and rendered his testimony regarding the extent of his pain not credible.
Sexual Harassment Cases
Information on a social networking website can also be useful in defending sexual harassment cases. A Federal District Court case in Indiana granted the defendants access to portions of two plaintiffs’ Facebook and MySpace communications because the plaintiffs claimed they had experienced “depression and post traumatic stress” as a result of sexual harassment.2 The court found that photos posted by the plaintiffs were discoverable because they might reveal the defendants emotional or mental status. Social networking content can also help to defend a sexual harassment case where the party who was allegedly harassed by coarse language or distasteful behavior has posted comments using the same language or photos depicting the same type of behavior that he or she has alleged were unwelcome in the lawsuit. In divorce cases, a party may be able to defeat a claim for alimony by proving through social media content that the spouse demanding alimony is cohabitating with another person. Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery and its limits. The Indiana sexual arassment case articulated limits to the discoverability of social networking communications in light of claims related to emotional and mental health. The court held that social networking website content is not shielded from discovery simply because it is “locked” or “private” and that social networking site content must be produced when it is relevant to a claim or defense in the case. However, the court also held that the plaintiffs’ allegations of depression, stress isorders, and like injuries did not automatically render all social networking communications relevant. The court articulated several guidelines tailored to the specific allegations in the case. Plaintiffs’ counsel was directed to produce all content responsive to the defendants’ discovery requests that fell. Other courts have been more permissive and have not limited the scope of social networking information that must be made available to defense counsel. A trial court judge in Pennsylvania ordered a personal injury plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants and directed that counsel could have “read-only” access to the entirety of the plaintiff’s accounts.3 The court also ordered that the plaintiff not delete or alter existing information or posts from the accounts. There are innumerable ways that social networking content can become the key evidence that wins your case, but the strategy for obtaining the information can be a tricky process.
How to get the information
There are strategic considerations to make when requesting the information directly from litigants. The following steps address the key considerations:
1. Determine whether any social networking information is publicly available and gather the publicly available data before making a request directly to the opponent.
2. Consider the best time to make the request.
3. Prevent existing data from being lost or deleted.
4. Get a court order compelling production of the information.
First, Get Publicly Available Content
Depending on each user’s privacy settings, some information is available to any person with an account on the particular website. On Facebook, a user can customize the privacy settings to allow groups of friends to view certain content while restricting the content from other friends. The user can restrict content to a network of users, such as other users who went to their high school or college. Some users make basic profile information publicly available but restrict photos and comments. To find publicly available informationon your opponent in litigation, the best place to start is often by Googling the person’s name. If the party has an uncommon name or an unusual spelling, you will frequently find links to that person’s online profiles. A Google search can provide links to the person’s social networking profiles, blogs the person publishes or to which he contributes, news stories about him or on which he has commented, or countless other websites that either reference that person or that are written by him. It can also be helpful to search for the person’s name in individual websites’ search engines. In Facebook, the majority of users have some basic information such as a name and photo publicly available. Only registered Facebook users can conduct searches using Facebook’s own search engine. When a search is conducted in Facebook, the results are prioritized by the searcher’s own information. Thus, when a registered user in Salt Lake City, Utah who attended the University of Utah searches for a John Doe who also lives in Salt Lake City and attended the University of Utah, that John Doe will be at the top of the search results. Other John Does will show up lower on the list of matches. It is also possible to filter search results by various identifiers such as location, school, or workplace. If your opponent’s social networking data is publicly available, simply save the relevant information as PDF documents. Bookmark the websites and periodically check them for new information.
Strategically Time your Request
Search engines will not conclusively reveal whether a particular individual has an account on the website in question. Some people use aliases and other people have common names that make them difficult tofind. If social networking data on your opponent is not publicly available, or if you cannot determine whether the individual has any social networking accounts, you will have to ask for the information from the party. Some attorneys ask whether a party uses any social networking websites in their first set of interrogatories and request copies of the data in their requests for production of documents. The best timing for such requests depends on the nature of the case. In some cases it is better to wait until after taking the party’s deposition to ask about social networking. The party being deposed will then have already detailed his claims and there is a better chance that social networking data can later be used for impeachment purposes.
Make Sure Information is Preserved
Plaintiffs and defendants have a duty to preserve evidence when they learn that the materials are relevant to an investigation or litigation. The requesting attorney should, at the least, remind his opponent of his duty to preserve evidence when he makes a request for social networking data. Consider petitioning the court for a “freeze” order compelling the party to preserve the information. You can also directly contact the websites to request that content a user deletes is preserved by the website.
Get an Order Compelling Production
If your opponent will not voluntarily provide the social networking data requested, move the court for an order compelling the party to produce the requested documents. Motions to compel discovery of social networking content have been successful in several courts.4 These courts have found that there is no expectation of privacy in the posting of Facebook and MySpace information, even when the user limits access to selected online friends.You may consider subpoenaing the information directly from the website in question, but you will likely run into difficulty. Facebook has interpreted the Stored Communications Act, 18 U.S.C. § 2701 et seq., as prohibiting them from disclosing the contents of a user’s Facebook account to any non-governmental entity even pursuant to a valid subpoena or court order. They have had some success defending this position in court. The better approach is to get an order compelling the individual user to produce the information or give authorization for the information to be released from the website. An order for the plaintiff to turn over his user name and password may go further than necessary. This order is akin to ordering a homeowner to turn over the keys to his house rather than simply to make the property available for inspection. Instead, courts can order parties to produce printed copies of the websites’ content. Courts can also order parties to allow opposing counsel access to their social networking websites by adding the attorneys as “friends.” Recently Facebook has provided an option for users to download a compressed file of their entire history of Facebook activity. The compressed file contains PDF documents of every piece of content the user has posted. Courts can order production of Facebook content by ordering users to produce their account history files. Parties can then be required to periodically supplement the disclosure with updated files as the case goes on. Beware of the temptation to become an opponent’s fake online “friend,” as this action would likely violate the rules of professional conduct prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation. The New York City Bar Association’s Committee on Professional Ethics issued an opinion specifically prohibiting actions such as creating a false Facebook profile for the purpose of making a friend request to an opponent.
Social networking websites are growing by hundreds of thousands of users per day. Savvy attorneys recognize the value of the information opposing parties are posting online and use it to the advantage of their clients.
Peter Christensen is a partner at Strong & Hanni in Salt Lake City, Utah. His practice concentrates on transportation and construction law cases. Peter has successfully defended insurance companies and their insureds in hundreds of cases through settlement, mediation, arbitration, and jury trials.
Kathryn Tunacik Smith is an attorney at Strong & Hanni in the transportation group. She holds a J.D. from the University of Utah and a B.S. from Indiana University.
Re-published courtesy of USLAW Magazine, Spring/Summer 2011