Discovery of Social Media
| Publication year | 2011 |
| Pages | 27 |
| Citation | Vol. 40 No. 6 Pg. 27 |
2011, June, Pg. 27. Discovery of Social Media
June 2011
Vol. 40, No. 6 [Page 27]
The Civil Litigator
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Holme Robertsand Owen, LLP-(303) 417-8510, timothy.reynolds@hro.com
About the Author
Kristen L. Mix is a U.S. Magistrate Judge, District of Colorado.
The increasing popularity of social media, such as Facebook, LinkedIn, Twitter, and YouTube, presents new challenges as courts and litigants grapple with whether and how information posted on such media might be used in litigation. This article discusses some of the legal issues surrounding the discovery and use of information available on various social media, and offers practice tips for litigants and their counsel.
This article explores the intersection of social media and litigation. Current events have demonstrated that "social media is not a fad or frivolity, but a paradigm shift sweeping both the legal profession and society at large."(fn1) Increasingly, courts are being asked to decide whether litigants are entitled to discover information contained in social media, how they may do so, and how such information may be used in litigation. A key issue is whether information contained in social media should be treated differently from other discoverable information, whether stored electronically or in paper form.
This article addresses three litigation issues relating to information contained in social media:
1. Can it be discovered?
2. Can it be used in litigation?
Finally, the article provides practice tips for the practitioner dealing with social media3. Is the Constitution involved?
Overview of Social Media
Social media are interactive websites that connect users based on common interests and that allow subscribers to personalize individual websites. Examples include Facebook, MySpace, Xanga, LinkedIn, Plaxo,(fn2) and YouTube.(fn3) Such websites have been described as:
Web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those madeby others within the system.(fn4)
As pointed outby one commentator, "this definition emphasizes three primary activities on such sites: users create a unique online identity, establish relationships with other users, and join various communities of users who share connections."(fn5)
Facebook currently is the most popular social-networking website. In general, Facebook allows users to create online profiles that display information about themselves and share that information with others:
Facebook members can share text with multiple people through a "status update" or through information placed on the user's profile... . Users can also share text with another user individually through a direct message to the user or a wall post to the user's profile, or users can have a direct conversation with another user through Facebook's chat feature.(fn6)
Facebook users may share pictures and videos,(fn7) and may specifically identify who can view their information.(fn8) When posting photographs to Facebook, users may identify themselves or other site membersby name, a process known as "tagging":
A photo tag creates a link to that user's profile and identifies the person and her specific location in the photo. Anyone with access to a given user's photos can view photos in which that user is tagged, including group photos of that user and others identified by name.(fn9)
Twitter allows users to share messages of 140 characters or fewer. Messages may be shared with specified people or the public at large. Users can send a short message (referred to as a tweet) and view others' messages through the Internet or a mobile phone. Twitter users also may share pictures with other users.(fn10) Tweets are stored in a variety of ways, depending on the method of transmission, including on Twitter servers, mobile phone providers' servers, or other application providers' servers.(fn11) Users who choose to have private Twitter accounts display their tweets only to specifically authorized persons. Users who have public accounts display their tweets to the public.(fn12)
In general, there are three sources of information contained on social media. Such information may be obtained from the user, someone who has access to the user's page, or the website owner-for example, Facebook or MySpace. "To gain full access to a person's [Facebook] page you have two options-join their network or become their friend."(fn13) Obtaining discovery through each of the sources may be problematic; hence, the solution forgedby one U.S. magistrate judge, who offered to facilitate discovery of non-parties' Facebook pagesby opening a Facebook account, friending the non-parties for the sole purpose of reviewing photographs and related comments from their pages in camera, disseminating relevant information from the non-parties' Facebook pages to the parties, then closing his account.(fn14)
On Facebook:
[A] user can limit not only who can see his or her information-ranging from only the user to everyone-but also limit the type of information visible to other specific users. [Thus], a stranger can obtain some social networking information very easily, while other information may be more difficult or even impossible to obtain.(fn15)
Equally important, Facebook has a detailed subpoena policy. The company may provide a "Neoprint," which it describes as an expanded view of a given user profile, in response to a subpoena. "This can include the user's physical address, e-mail address, phone number, and an IP address." Facebook also may provide a "Photoprint," which is a "compilation of all photos uploaded by the user that have not been deleted, along with all photos uploadedby any user which have the requested user tagged in them."(fn16) Facebook's policy does not divulge how the company determines the level of data disclosure. As one commentator has noted, because of the broad prohibitions of the Stored Communications Act, "it appears unlikely that MySpace and Facebook would divulge private content subject to a civil subpoena without the user's consent."(fn17)
Twitter also has a privacy policy, which specifically indicates that although Twitter stores information, "it will not release information unless requiredby a subpoena, court order, or legal process document."(fn18) Although Twitter often stores information on its servers for a short period of time, "a date preservation request can extend the period for which data is stored."(fn19)
Social Media in Canadian Courts
Recently, the Canadian appellate courts have given in-depth review to discovery of social networking information, and have provided a roadmap for Canadian trial judges to use in resolving discovery disputes. Significantly, the Canadian approach discards the idea that social networking site content should be treated differently based on the user's privacy settings. As one court concluded:
A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in the action.(fn20)
This reasoning was based on the court's view that the potential for withholding relevant information in a case is great because Facebook's privacy controls are so easily manipulable:
To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a Website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.(fn21)
In a practical and down-to-earth fashion, one Canadian judge noted that "the plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to [his] private site [on Facebook]."(fn22) Said another: "Facebook is not used as a meansby which account holders carry on monologues with themselves."(fn23)
Other Canadian courts have interpreted these cases to require plaintiffs to preserve relevant photographs and other information on social-networking sites and to list this information in the equivalent of mandatory disclosures pursuant to Federal Rule of Civil Procedure (Rule) 26(a)(1).(fn24) One federal judge in the United States has cited these cases with approval in the context of granting a request for discovery from sexual harassment plaintiffs' MySpace and Facebook pages relating to their "emotions, feelings or mental states."(fn25)
Access to and Storage of Information
A social media user's privacy settings dictate access to information contained on MySpace, Facebook, and LinkedIn. A person must be a "friend" of a Facebook user to access his or her page; however, a user's private comments on Facebook can be copied and pasted elsewhere, and thus may become generally accessible on the Internet.(fn26) Blog posts are generally readily accessibleby any Internet user. Tweets can be accessedby any third party online.
Storage of social media information is complicated. Tweets are stored on Twitter's servers unless deletedby the sender, but also may be stored on the...
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