Discovery of Social Media in Family Court Litigation, 0919 SCBJ, SC Lawyer, September 2019, #34

• Author: By J. Michael Taylor
• Position: Vol. 31 Issue 2 Pg. 34

Discovery of Social Media in Family Court Litigation

Vol. 31 Issue 2 Pg. 34

South Carolina BAR Journal

September, 2019

By J. Michael Taylor

Note: The scope of this article is limited to obtaining information, primarily social media, in the course of active litigation where evidence is sought from an opposing party, or where the opposing party can interpose objections when the data is sought from third party social media platforms. Obtaining such information by extrajudicial means, such as accessing data bases without the owner’s contemporaneous or direct knowledge, is beyond the scope of this article.

Electronically Stored Information, or “ESI,” has been around for decades. Social media, while not entirely new, is a subset of ESI that has evolved in unanticipated directions. Indeed, the rate of the use of social media not only has continued to increase exponentially, but it also has evolved to the point that human behavior has changed in response, with new platforms being developed to meet, if not create, more need. This cycle of change is difficult for most users to keep up with, and the rules governing the discovery of that information are lagging further behind. The “give me everything you have” requests that worked in the days of paper banking and credit card statements is now problematic as the wealth of data contained in ESI pushes against long-standing protections of privacy, privilege and the rules of relevance. In large part, the time-tested balances from the days of typewriters and paper trails still work, but in the age of social media, the specific applications of the rules implementing those concepts present new challenges. This article explores the present employment of those existing rules to that continually evolving landscape.

ESI issues start with the first consultation

Because ESI in general is as ephemeral as the arrangement of the electrons that comprise it, extraordinary care is required to preserve it. The issue of preservation has several moving parts.

First, the South Carolina Rules of Professional Conduct prohibit an attorney from obstructing another party’s access to evidence and from unlawfully altering, destroying or concealing material having potential evidentiary value. In addition, the Rules prohibit an attorney counseling or assisting a witness to provide false evidence.^[1] The comments to that Rule clarify that “[p]aragraph (a) applies to evidentiary material generally, including computerized information.” The comments also note that “many jurisdictions make[] it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen.”²

Thus, during the first consultation with a potential client, counsel should instruct the client about the importance of preservation of evidence and advise the client not to delete any ESI unless it is legitimately in the normal course of business to do so—that is, if deleting data in cloud storage to make room for new data is not a sudden, new practice but one that has been followed in the past with regularity.³ Even then, because courts have sanctioned lawyers personally for their client’s failure to preserve or prevent intentional destruction of evidence, lawyers should include in their notes or in a follow-up letter that they instructed the potential client about preservation of possibly discoverable material.⁴

As for future online activity, many family law attorneys often advise clients to stop posting publicly on social media sites. However, such advice can have an underappreciated adverse effect. In today’s world, advising a client to change their lifestyle by abstaining from social media is like advising a party to not use their smart phones. Advising a party to “go dark” isolates them from their friends, family, social groups, professional networking sites and other interests, thereby creating more stress. Instead, in a divorce action an attorney should instruct the client to maintain a near-normal lifestyle but to assume their worst enemy is reading every future post and could potentially use it to the client’s disadvantage in court.^[5]

The next problem is that some evidence may nonetheless be destroyed, either intentionally or unintentionally. It is not unheard of for an unscrupulous litigant to erase posts or suddenly “lose” their phone, or after turning it over, use “Find My iPhone” to wipe it clean remotely. Less well known is the unintentional destruction of evidence. iPhones, for example, routinely delete emails over 30 days old. Even if there are automatic scheduled backups to the cloud, those protocols may not be engaged. While this may fall within the normal course-of-business routine cleanup habit, that shield will not be available if opposing counsel specifically asks that all deletion protocols be disabled.

The dilemma in ensuring proper preservation of ESI evidence is that, particularly when there is a risk of intentional destruction of data, the four traditional ways to obtain evidence are not always effective in preventing such destruction. The first way is a criminal warrant for the device itself. But this requires a showing of probable cause, and the devices will be in the custody of the police and therefore not available for civil litigation.

The second method is through a discovery subpoena under Rule 45, SCRCP. If issued to the opposing party, a subpoena gives the responding party at least 10 days’ notice, which is more than enough time to “accidentally” drop a phone into a hot tub. If the subpoena is issued to a third party platform like Facebook or Twitter, many of those companies refuse to comply with such subpoenas under the Federal Secured Communications Act.⁶ Having a court order a party to sign an authorization allowing access to third party sites is likewise problematic because many social media platforms include a clause in their terms of use that provides the user will not share his or her user name and password, thereby making such court orders ineffective.

The third method is a request to produce the physical device or an interrogatory requesting the account information and password, which would allow the receiving party to go straight to the device or platform and access the data directly. But this method gives the responding party even more time a minimum of 30 days within which to respond. Additionally, this option has additional problems that are discussed later in this article.

The fourth method is an ex parte order prohibiting destruction of ESI along with an order to bring a device to an emergency hearing. This method sounds good in theory, but in practice it could be difficult. It requires, at a minimum, an affidavit or verified pleading showing a substantial risk of irreparable injury, loss or harm that will result from the delay required to effect notice, and a showing that notice itself will precipitate adverse action before an order can be issued. Such a high burden is difficult to meet, particularly at the beginning of a case. If such an order is requested during the litigation after counsel has been retained, there will be the additional burden of issuing the order without notice to opposing counsel, or if opposing counsel is notified, addressing whether that counsel can or cannot communicate to his client that his device will be inspected.

Given the delays inherent in the foregoing, it is common practice for a requesting party to send the responding party an anti-spoliation letter as soon as it is determined ESI will be an issue.⁷ This letter puts the responding party on notice that ESI will be requested and that all past and future activity (whether by online or cellular methods) must be preserved, that any automatic deletion protocols should be disabled, and that the responding party should refrain from deleting data maintained “in the normal course of business.” Such a letter serves as immediate notice obviating the need for a court hearing. This method also does not provide the responding party with minimum time within which to respond.

Failure to comply with an anti-spoliation notice carries substantial risk. First, there is the risk to the case itself. In some situations, the date that hard drives were smashed, or posts were deleted and overwritten can be reconstructed. But even if they cannot be, the fact such destruction took place after notification raises problems for the responding party such as opening him to impeachment at trial. More significantly where parties and their attorneys are found guilty of deleting evidence, courts have considered a variety of penalties including a negative inference (i.e., a presumption that the deleted data was damaging to that party), financial sanctions or disbarment.⁸

An anti-spoliation notice has even more horsepower if anti-spoliation language is also included in a temporary order or an ex parte order granting an emergency hearing. Indeed, among the protections available to both parties would be a provision that the requesting party have a forensic computer expert at the hearing who is able to take immediate possession⁹ of the opposing party’s phone, download its data, and safe keep it without examination and then return the device so it can be used by the owner.¹⁰

Accessing data: dangers to avoid

The information preserved may be more than a document, picture or chart. In whatever form, this information can be fragile. In the simplest example, a Word document on a computer not connected to the Internet is subject to accidental destruction of evidence when opened. Merely placing a cursor over the document will reveal the last date the document was opened, and opening the document changes the last date the document was accessed to the current date and time.¹¹ This has been important in more than one case where there is a question about when an incriminating document was created.

This background information, known as metadata, is information about the document itself that by today’s software automatically generates. Metadata contains information such as who initially created the document and when, how many versions were created, what language was removed, and what language was added. This information can be very revealing. For example, metadata in draft settlement offers that are passed between counsel and client for comment may contain attorney-client communications, such as monetary offers proposed to the client and removed before sharing with opposing counsel. Because of this, it should be standard practice to either wipe out any metadata from documents emailed to opposing counsel, or more simply, create and send PDF versions of the documents.

As for social media and email accounts, there is another problem fraught with peril to both parties, namely, discovery requests that seek user names and passwords for all such sites.¹² This is problematic because (a) it allows the opposing party unrestricted access to the other party’s social media and email accounts, and (b) it enables the opposing party to assume the identity of the account owner.

As to the former, there is the obvious opportunity for disclosure of privileged material, whether stored on a device itself or in the cloud.¹³ This is not limited to just privileged communications between a litigant and his attorney, but also breach of third party confidences such as HIPPA records held by a doctor-litigant or client information held by an attorney going through his own divorce. Further, the device itself may contain passwords for other accounts in a designated file or an app, as well as links to other platforms such as Venmo and PayPal that are frequently accessed from sites like Facebook.

There is also the risk of possible accidental, or intentional, deletion or alteration of compromising information that cannot be understated. In South Carolina, fault in the breakup of a marriage is relevant to several issues. A party may be a drunkard, abusive, or otherwise have a propensity for problematic behavior that may or may not be documented in social media; and forging or creating evidence of such behavior is a real risk. Even a litigant unfamiliar with the complexities of Information Technology could hire someone with the requisite skills to access the opposing party’s account and alter or delete posts.

Even worse, such unauthorized entry potentially allows the opposing party to change the account owner’s privacy and other settings, whether on a platform or on a smart device itself. For example, one could surreptitiously add the GPS feature to Facebook photo posts so when the account owner posts pictures or comments about restaurants, concerts or other activities, the site would include the owner’s location. Having such access could result in an account owner to report his whereabouts to others without his knowledge.

Because of all these dangers, it is in a party’s best interests not to have unrestricted access to an opponent’s email and social media accounts. For example, if, subsequent to her obtaining access to Husband’s accounts, a third-party hacker got into a Husband’s accounts and made changes, Wife would be the first suspect. Even if she were to obtain legitimate information incriminating Husband, Husband might claim Wife forged or planted the evidence. Indeed, “[t] he most common challenge to authenticating social media evidence will be from the opposing counsel objecting to the evidence as ‘doctored’ or ‘photo-shopped.’”¹⁴

Once Wife has legally obtained social media evidence that she claims Husband generated, Wife has the burden of showing the evidence is genuine. Thus, protecting passwords can actually resolve potential authentication issues further downstream in the litigation. In more than one case, social media accounts have been authenticated by witnesses who were not computer forensics experts yet had sufficient user experience to testify about how Myspace or other social media accounts and profiles are created, how profiles can be viewed by the public, and how only the person with the password to the account can upload and edit content on the account pages.¹⁵ In short, if the password has only been in the possession of the original owner, the argument that the data has been corrupted or compromised loses credibility.

Separating the relevant from the irrelevant and privileged

Once the requesting party secures ESI, the next issue is how to separate the chaff from the wheat. Responding parties sometimes object on the basis that access to any such information violates one’s “right to privacy.” However, this is the wrong argument because “private” in a social media setting does not mean “privileged.” Specifically, while Article I, Section 10 of the South Carolina Constitution contains a “right to privacy,” that right has long been held to be in the context of criminal cases, not civil litigation.¹⁶ As several courts have found, no general privacy or social media privilege protects Facebook profile information from production, even when designated as “private,” including photographs, applications, posts and status updates.¹⁷ This is because of the nature of social media itself. While a user may try to limit posts to a narrow group of “friends,” those friends can forward the posts or otherwise spread the information beyond the originator’s intention. This incident of the present state of mass communications is well known, thereby weakening any argument that there is an “expectation of privacy,” or at least a reasonable one.¹⁸

The scope of production has to be reasonable, however. Although Facebook and LinkedIn platforms certainly can be expected to yield evidence of disparagement, adultery, or other matters at issue, allowing the wholesale invasion of a litigant’s entire social accounts is as overly broad as allowing a spouse unrestricted access to an opposing party’s office when only specific correspondence between two individuals is being sought. As the Michigan District Court has observed: [A] Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public review. Rather, consistent with Rule 26(b) [Michigan Rules of Civil Procedure] 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 v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (Emphasis in original).

The South Carolina Supreme Court has recognized that there are limits to discovery requests: Generally, the scope of discovery is within the trial court’s discretion. However, the trial court must make an effort to impose reasonable discovery limits. The trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure.

Our procedural rules define the general scope of discovery as any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is ‘reasonably calculated to lead to the discovery of admissible evidence.’ . . . Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute’s resolution. Thus, discovery requests must be “reasonably tailored” to include only relevant matters.

Oncology & Hematology Assocs. of S.C., LLC v. S.C. Dep’t of Health & Envtl. Control, 387 S.C. 380, 388, 692 S.E.2d 920, 924–25 (2010) (quoting In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (Emphasis added)). In short, if adultery is an issue, asking for all profiles, pictures, and posts on dating sites is proper. But seeking posts on LinkedIn and other professional networking sites would be questionable.

The “unduly burdensome” nature of a request is more nuanced in social media situations than in a setting where bank records and the like are stored on electronic devices. The South Carolina Court Rules do not clearly address this. Rule 26(b)(6)(A), SCRCP, provides: A party need not provide discovery of electronically stored information from sources that the party identifies to the requesting party as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information i s not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(6)(B). The court may specify conditions for the discovery, including allocation of expenses associated with discovery of the electronically stored information.

However, the problem in giving over email addresses, user names, and the passwords necessary to access them is not an undue burden or cost. All a requesting party has to do is log onto the responding party’s accounts and wander around.¹⁹ Likewise, the “reasonably calculated to lead to the discovery of admissible evidence” standard can be an amorphous rule.

Restricting the scope of information sought is usually resolved in a motion for protective order or motion to compel discovery using the aforementioned trio of guide-lines. Those terms in a family court setting can be refined by following the practices that have developed in the federal courts, which have addressed the problem squarely by building into the updated rules specific mechanisms by which ESI discovery is conducted.

The 2015 amendments to the Federal Rules of Civil Procedure address this issue. First, Rule 1, FRCP, now reads as follows: These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

(Emphasis added.) As noted by one commentator, this means there is no dispute that the parties and the courts have an obligation to administer the rules in a way that will secure just, speedy and inexpensive resolutions.²⁰ This is important because Federal Rule 26(b)(1) was also amended to omit the “reasonably calculated to lead to the discovery of admissible evidence” standard which still exists in South Carolina state court.

Specifically, new Rule 26(b)(1), FRCP, now reads as follows:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. ( New language in italics.)^[21]

The Notes to this new Rule state that no single factor necessarily overrides another. For example, “the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.”

The risk of harm should be added to those factors, especially in the family court setting. As already stated, a vengeful spouse armed with the ability to impersonate the other spouse can create irrevocable havoc with the possibility that the author of such mayhem may never be identified. A disgruntled spouse’s disclosure of confidential or embarrassing information posted on social media sites can affect a professional’s reputation as well as cause embarrassment that could affect the children of the parties. The courts can mitigate these problems by employing the same sort of protective orders and restrictions routinely used in other sorts of discovery disputes. For example, in the trade secret context, our courts routinely protect sensitive information through the imposition of detailed and restrictive protective orders that allow litigants access to information necessary for the administration of justice while still preserving and protecting the integrity of that type of information.

Protecting sensitive data

If ESI is the only thing sought and there are no issues of privilege, the responding spouse could simply download his Facebook²² account profile, posts, pictures, videos, private messages and any other requested information into a zip file or onto a thumb drive and provide it to Wife in a format that is not easily modifiable, like a PDF file. However, where the metadata is relevant (such as metadata that records when certain actions were taken by a party either posting or deleting data from their social media site), providing hard copies of a party’s posts does not give the requesting party the information they may desire. In those situations, it is possible to turn over the material in its “native format,” which is to provide an exact copy of the data.²³ This way, particularly when there is a voluminous amount of data, search programs can sift the chaff from the wheat, saving litigation costs.

In either case, if the data contains an inordinate amount of privileged material, there are two ways to tease those items out. First is the traditional way. Husband could first go through the material, create a privilege log, turn over the non-privileged material, and then the litigants can fight over the allegedly privileged material. For more involved cases, it is not unusual for each party to have their own forensic technology experts who alone have the passwords and encryption codes. The responding party would then have his expert preserve the data, restrict fishing expeditions, and protect the privileged material.²⁴ This material is then turned over to the other expert to review and examine, perhaps mining the metadata or running his own search programs.

The second, and often more cost-effective way to sort through the ESI is to have an independent gatekeeper download, review, protect privileged material identified by each party, and then conduct a search using agreed upon search terms. In other situations, the gatekeeper could provide all non-privileged, relevant material that the parties review on their own and use the gatekeeper to conduct follow-up metadata searches or checks. Indeed, some family court lawyers in this state who have dealt with these issues appoint a qualified forensic computer analyst either retained by one or both of the parties who is tasked with examining the data under a strict confidentiality order negotiated by the parties.²⁵ This can be done between counsels or at a pretrial or discovery conference where numerous options can be explored.²⁶ At a minimum, it is important for a gatekeeper expert to have duties that are clearly spelled out including, but not limited to: (1) having sole access to the devices being searched (smart phones, laptops, computers) as well as access to social media of the producing party, with passwords, encryption keys, and any other information necessary to access the designated platforms being searched with the passwords being kept strictly confidential;

(2) being charged with the task of reviewing and producing, preferably in a searchable format (electronic medium), material within the search parameters set by agreement or order of the court,²⁷ which would then be turned over to the producing party with the information to be considered as confidential and proprietary to the producing party;

(3) after a set period of time to allow double-checking to prevent inadvertent disclosure of privileged material, turning over the unprivileged material to the requesting party; and

(4) placing the gatekeeper, both parties, and their counsel under a confidentiality order ordering all parties not to disclose the material outside of the litigation and, where appropriate, keeping certain material (such as trade secrets) under seal.²⁸

The gatekeeper would be made a party to the order so the family court could enforce confidentiality and other restrictions. Only after exhausting the foregoing procedure should the passwords, encryption keys and other information necessary to access the accounts be given to the opposing party, and then only by motion of the requesting party demonstrating to the court a compelling need based on competent evidence. This avoids an inadvertent failure to meet a discovery deadline creating a disclose-by-default situation: an affirmative act by the requesting party requires a well-considered decision after the less intrusive options are either exhausted or discarded before having to prove the higher burden of need.

Conclusion

For the most part, the move from paper discovery to e-discovery does not require a reinvention of the wheel so much as an adaptation of underlying principles that have evolved over the past several decades, most prominently in the federal courts. Facebook posts, emails, text messages and Snap-chat comments are the love letters and secret business deals previously snail-mailed to paramours and undisclosed business partners, but no less damning. Preservation of the integrity of ESI evidence is simply a more careful application of chain-of-custody procedures established by the criminal justice system when forensic analysis of crime scenes developed. Confidentiality of sensitive personal matters and privileged communications can be maintained with the security protocols first applied to trade secrets. True, the sheer volume of information has ballooned tremendously, but such daunting workloads can be managed because there’s an app for that.

J. Michael Taylor practices family law with Taylor/Potterfield in Columbia.

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Notes:

[1] See SCACR 407, Rules of Professional Conduct 3.4 (a) and (b).

[2] Model code of Prof’l conduct r. 3.4 cmt. 2 (AM. Bar ASS’N 1980).

[3] See Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 486 (S.D. Fla. 1984) (noting that a “reasonable” document retention program might survive judicial review and suggesting that “the good faith disposal of documents pursuant to a bona fide, consistent and reasonable document retention policy” might provide a justification for failing to produce documents in response to discovery requests). See also Rule 37(f), SCRCP (“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as result of the routine, good-faith operation of an electronic information system.”). Compare ABA Litigation Task Force on Electronic Discovery, Standard 29(a)(iii) (Aug. 1999) (“Unless a requesting party can demonstrate a substantial need for it, a party does not ordinarily have a duty to take steps to try to restore electronic information that has been deleted or discarded in the regular course of business but may not have been completely erased from computer memory”), with ABA Litigation Task Force on Electronic Discovery, November 2003 Draft Amendments to Electronic Discovery Standards, Standard 29(a)(iii) (Nov. 17, 2003) (“Electronic data as to which a duty to preserve may exist includes data that may have been deleted but can be restored”), both available at http://www. fjc.gov/public/pdf.nsf/lookup/ElecDi12. pdf/$file/ElecDi12.pdf.

[4] See, e.g., Allied Concrete v. Lester, 736 S.E.2d 699 (Va. 2013) (sanctioning both the litigant and his attorney for the destruction of Facebook posts); Sekisui Am. Corp. v. Hart, 945 F.Supp.2d 494 (S.D.N.Y. 2013) (attorneys sanctioned for not advising their client properly about preservation of electronically stored information); Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-B (BLM), 2008 WL 66932, at *9 (S.D. Cal. Jan. 7, 2008), vacated in part, No. 05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) (sanctioning corporation and its attorneys for destruction of e-mails).

[5] See Nicole A. Keefe, Dance Like No One is Watching, Post Like Everyone is: The Accessibility of “Private” Social Media Content in Civil Litigation, 19 Vand. J. Ent. & tech. L. 1027 (Summer 2017).

[6] See, e.g., J.T. Shannon Lumber Co. v. Gilco Lumber Inc., No. 2:07-cv-119, 2008 WL 3833216 (N.D. Miss. 2008), reconsideration denied, 2008 WL 4755370, at *1 (N.D. Miss. 2008) (The court found the “statutory language . . . clear and unambiguous” and ruled that a Rule 45 subpoena does not constitute an exception to the SCA allowing an ECS provider to divulge the contents of communications.)

[7] The term Anti-Spoliation letter is sometimes referred to as a “Litigation Hold letter” or a “Duty to Preserve letter.

[8] See Lester, 736 S.E.2d 699; Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 311 (S.D.N.Y. 2003); compare Hawkins v. Coll. of Charleston, No. 2:12-CV-384-DCN, 2013 WL 6050324 (D.S.C. Nov. 15, 2013), where the Court did not dismiss Plaintiff’s case for deleting some of his Facebook pages because the Court found Plaintiff’s actions did not prejudice the Defendant.

[9] Remote wiping of the device’s data can be prevented by having the phone dropped into a “Faraday Bag,” an enclosure that isolates the phone from radio waves named after the English scientist Michael Faraday. Essentially, it is a sandwich bag made of aluminum foil that is cheap, lightweight and easy to use. Riley v. California, 134 U.S. 2473, 2487 (2014).

[10] A common practice, at least with respect to information stored on devices such as computers with hard drives, is for a technician to copy, or “ghost,” all the information onto a second and third hard drive and then return the original to the owner so the owner does not lose use of it. The second hard drive is preserved unmolested as a safety and the third is then inspected using appropriate programs, particularly useful when there is so much data as to be impossible to manually search, like doing computerized legal research for specific terms rather than manually going through the entire contents of a law library.

[11] Even where protections were put into place, lawyers and forensic computer/ technology experts have unintentionally spoliated the other party’s electronically stored information (“ESI”) by their lack of knowledge regarding the proper handling and authentication of the data.

[12] Technically, “passwords” are “a sequence of characters required for access to a computer system.” Merriam-Webster. However, the discussion here includes anything required to obtain access to a device or data as some smart phones require “two factor authentication,” meaning a second password, or encryption keys. “Encryption is a security feature that some modern [devices] use in addition to password protection. When such [devices] lock, data becomes protected by sophisticated encryption that renders a [device] all but ‘unbreakable’ unless [someone] know[s] the password.” Riley, 134 U.S. at 2486. Accordingly, access to a single password may not be sufficient to obtain the data being sought. At the same time, ephemeral social media (platforms whose posts are deleted after having been read one time or after the passage of a certain period of time, such as Snapchat) are not as protected as advertised: using the appropriate feature, the last 30 days of posts on Snapchat can be retrieved.

[13] “Cloud computing is the capacity of Internet-connected devices to display data stored in remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Id. at 2491.

[14] Rahul Gupta, Commentary:

Authenticating Social Media Evidence in California, the Social Media Capitol of the World, 30 J. of the AM. Acad. of Matrim. Law. 343, 344 (2018).

[15] See People v. Valdez, 201 Cal.App.4th 1429 (2011), where a photograph and printouts from a criminal defendant’s MySpace social media account were properly authenticated when the investigating officer, who was admittedly not a computer forensics expert but had sufficient user experience with MySpace, testified how a MySpace account and profile are created; how profiles can be viewed by the public; and how only the person with the password to the account can upload and edit content on the account pages. See also, In re KB, 238 Cal.App.4th 989 (2015) (a witness with user experience knowledge of Instagram such that she was sufficiently familiar with the social media account creation process, including understanding that each account is password protected, provided the court with an adequate foundation to authenticate photographs posted on the Defendant’s social media account.).

[16] Parks v. Laurens Cotton Mills, 75 S.C. 560, 56 S.E. 234 (1907).

[17] Largent v. Reed, No. 2009-1823, slip op. (Pa. C.P. Franklin Co. 2011) (Party ordered to produce Facebook username and password for discovery of physical activity related to damage claims). See also, EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (Although social media provides a novel context, basic discovery principles apply: social media content is not privileged merely because the user has deemed it “private” and privacy concerns can be addressed through a protective order.).

[18] See Keefe, supra note 3.

[19] For cases where the there are hundreds of thousands of pages of metadata, there is also the opportunity to use predictive coding to efficiently zero in on relevant material. Timothy J. Chovat & Lauren E. Pelanck, Electronically Stored Information in Litigation, 68 Bus. Law. 245, 252 n.75 (2012) (See, e.g., Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 311 (S.D.N.Y. 2003) (“As individuals and corporations increasingly do business electronically—using computers to create and store documents, make deals and exchange emails . . . the universe of discoverable material has expanded exponentially. The more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, ‘discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.’”), Steven C. Bennett, Are E-Discovery Costs Recoverable by a Prevailing Party?, 20 a LB. L.J. SCI. & Tech. 537, 538 n.1 (2010) (noting that a mid-size case can cost between $2.5 and $3.5 million for the collection, review and production of electronic information.).

[20] Joseph F. Marinelli, “New

Amendments to the Federal Rules of Civil Procedure: What’s the Big Idea?” An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, ABA, www.amer-icanbar.org/publications/blt/2016/02/07_ marinelli.html.

[21] In particular, the South Carolina Bar Board of Governors, at its January 2019 meeting, passed a resolution that FRCP 1.1 be adopted as SCRCP1.

[22] Other platforms, such as Twitter, have the same capability.

[23] Note: Whether Requests to Produce are sent to a party to the litigation or a subpoena is sent to a third party, and the Request or subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Rule 34(b)(1) and Rule 45(d)(1) (A), SCRCP (emphasis added.)

[24] This need not be a tedious task, nor be used as a claim for the discovery to be unduly burdensome. See Moore v. Publicis Groupe, 287 F.R.D. 182, 190 (S.D.N.Y. 2012), adopted by, Moore v. Publicis Groupe SA, No. 11 CIV. 1279(ALC)(AJP), 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012) (“[W]hile some lawyers still consider manual review to be the ‘gold standard,’ that is a myth, as statistics clearly show that computerize searches are at least as accurate, if not more so, than manual review.”).

[25] In the Federal Courts, under the new Rule 1, FRCP, counsel for the parties are encouraged to resolve discovery plans before they bring a motion to the court. See Mancia v. Mayfower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008) (Court held the failure of opposing counsel to cooperate and work out disputes was the biggest reason e-discovery costs were skyrocketing; the court strongly advised counsel from both sides to work together and make the e-discovery phase move more smoothly.).

[26] For a well-considered and comprehensive discovery plan checklist, see U.S. District Court for the District of Minnesota, Discussion of Electronic Discovery at Rule26(f) Conferences: A Guide for Practitioners, http://www.mnd.uscourts.gov/FORMS/ Clerks_Offce/eDiscovery-Guide.pdf.

[27] This may be either specific search terms or a description of information being sought, preferably limited to a specific period of time.

[28] An exception, which should also be stated in the order, would be if the gatekeeper were to uncover illegal material such as child pornography, which would have to be turned over to the appropriate authorities. See S.C. Code Ann. §16-3-850 (2015) (requiring that any retail or wholesale film processor or computer technician working on a computer who views an image of a child under the age of 18 engaging in sexual conduct must report the name and address of the individual requesting development of the film or owner of the computer to law enforcement).

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