Issues with Social Media in Litigation

Presented by: Mark O’Mara

O’Mara Law Group

407-898-5151

omaralawgroup.com

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The Technology Culture Gap There is a gap between what technology is capable of and our common understanding

of what technology can do. Imagine a graph plotting the exponential growth of

technology: it would be a curve that begins with a shallow slope and then quickly turns

skyward, until it seems to shoot almost straight up. For technology, the pace of change

is constantly accelerating. The problem is that people, in general, naturally tend to

view the rate of change as constant – as a linear function. If we look back at our

personal understanding of technology when we entered the workforce and compare it

to now, we’ll understand that technology has advanced, but we’ll have a gut sense of

that change as a straight line. We’ll intuitively expect, even if we know better

intellectually, that technology will advance into the future at about the same rate that it

has advanced in the past. And we’ll be dead wrong.

Technology in the next ten years will eclipse our expectations. In litigation, the biggest

challenge will not be figuring out how it works–there will always be experts for that–

the biggest challenge will be having the imagination to dream of what is possible. Will

we even be able to identify when there is an issue with admitting technology evidence

in court? How will we use technology to our advantage? How will we protect ourselves

from being blindsided by challenges to our electronic evidence from opposing

litigants?

Tech Savvy The thing about electronic technology is that it’s invisible unless you choose to look at

it. If opposing counsel fails to address electronic discovery issues, then technology

won’t become a part of the litigation, and the evidence is in. If counsel does understand

the role of technology in a case, but cannot communicate it effectively to the judge,

then technology won’t become part of the litigation, and the technology.

Technology and the Judge The judge decides what evidence gets into the courtroom and what does not. Some

judges are more tech savvy than others. Knowing the level of understanding your judge

has will be critical to how you present the technical details of tech-based evidence. If

there is an argument about the metadata on a JPEG, is the judge even equipped to hear

that argument? Does she know what metadata is? Does he know what a JPEG is? If a

key piece of discovery is technology related, you may need a qualified expert on that

technology to make a case to the judge, unless it has been properly addressed pre-trial.

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Technology and the Lawyers It’s also up to the attorneys to determine what technology-based evidence gets into the

courtroom, and much of that depends on how much the lawyers in a case understand

technology. If a lawyer doesn’t think to question the metadata of a JPEG, there is no

technology issue. It’s impossible to be an expert on all types of technology, but a

lawyer has to always question if there is more to the digital evidence they have, and

whether there is digital evidence that they don’t know about. In the 21st Century, a

lawyer has to at least to know what it is he or she doesn’t know.

Hidden Technology: The Drama Over A JPEG In the Zimmerman case, the defense presented the jury with photograph of George

Zimmerman’s injuries taken by a police officer on the night of February 26, 2012–only

moments after the shooting. The photo was printed and mounted on foam core so a

lawyer could hold it in his hands and the jury would be able to physically handle it

during deliberations. It felt like physical evidence, but it was, in fact, digital discovery.

The photo of George’s injuries was captured by a digital camera–in this case, the camera

on an iPhone. The original photo was a JPEG, an electronic file: digital discovery. But

that’s not how the image was initially put into discovery. The first time the defense

team saw that photo, it was a grainy black and white photocopy. The defense asked for a

color image, and the prosecutors, after some time, presented a washed-out color copy.

Finally, the defense demanded, in a Motion to Compel, the original digital file. In court,

the prosecutors expressed some confusion about what a “JPEG” was, but ultimately

figured it out, and under a court order, provided the JPEG in discovery. The difference

between the digital image and the copies was striking.

The defense made the image available on the gzlegalcase.com website, which was

created to manage public interest in the case. Immediately, there were cries that the

photo had been doctored, manipulated to make George’s injuries look more severe. The

image had not been doctored, and the proof was in the metadata. The metadata showed

exactly when the photo was taken; it showed the shutter speed and the orientation of the

camera; and it showed that photo had not been modified.

The lesson here is that important discovery should never be taken at face value. Almost

all digital discovery has metadata attached, and that data could be significant. Practically

all printed documents come from a digital file; wouldn’t you like to know when that

document was lasted updated and why? If you don’t have the digital file, you don’t have

all the discovery, and you’ll never know what you’re missing. If there is information in

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discovery you don’t like, use metadata to challenge its authenticity.

The Challenge of Big Data The idea behind the concept of “Big Data” is that we create so much information in our

daily lives, it is practically impossible for people to directly review all of it. It’s easy to

encounter a case with tens of thousands of emails. Since it’s not practical to read every

email, we use search terms, filters, and date ranges to find relevant information.

Sometimes we use predictive coding algorithms to discover relevant documents. From

this perspective, it’s easy to see that two different people, using different search terms

and different software will yield different results.

Data Sets There are other data sets, such as the information on an individual’s cell phone, which

can quickly exceed hundreds of thousands of records, and in large litigations, may easily

reach millions. In fact, the more complicated data gets, the more difficult it becomes to

even identify what a complete data set actually is. In the case of a cell phone, the

techniques used to extract the information from the phone will affect what data actually

comes out. We have seen two well-qualified experts using slightly different versions of

the same software yield two different data sets from one phone. Each found some

information that the other had not. Neither had found all the data, and it’s likely that the

combined datasets still left some information undiscovered.

Social Media Evidence Comments, posts, and photographs on social media are electronic documents and they

may be discoverable. How exactly to go about collecting that discovery, however, is

not immediately clear. The direct approach is to ask for it, but there are some obvious

obstacles here. The parties involved will not be eager to provide all their social media

content, and they’ll likely argue that most of their content is private and not relevant to

the litigation (and they’ll probably be right). Moreover, the logistics of providing the

information can present a challenge as there is no easy way to deliver social media

posts. Complications include access controls to profiles and the specific nature of how

each social media platform presents information.

Disclosing Social Media Discovery When litigants cannot agree on how to disclose social media evidence, the issue will

end up before the judge, and there’s no telling what the judge will do. The developing

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case law is all over the map. Some judges have required litigants provide login

credentials to the opposing counsel Largent v. Reed, No. 2009-1823 (Pa. C.C.P. Nov.

8, 2011); while others find such access unreasonable Trail v. Lesko, No. GD-10-

017249 (Pa. C.C.P. July 3, 2012). Hands-on judges may agree to in-camera review of

social media sites--and there is even a bizarre case where the judge “friended” a

litigant to look for relevant information Barnes v. CUS Nashville, LLC, No. 3:09-cv-

00764, 2011 U.S. Dist. LEXIS 143892 (M.D. Tenn. June 3, 2010)--but considering

the tedium of social media investigations, this will not be a popular approach.

http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html

Perhaps the most sensible solution is an attorney’s eyes only approach Thompson v.

Autoliv ASP, Inc., No. 2:09-cv-01375 (D. Nev. June 20, 2012), where counselors can

gain access to the accounts in question, perhaps searching posts only within a relevant

date range, posts containing interactions between specific individuals, or including

specific keywords. Once tagged as relevant, the attorneys can agree on discoverability,

or the limited data set can be taken before the judge for review.

Searching for Social Media Discovery As a rule of thumb, judges despise “fishing expeditions,” and any overbroad or over-

intrusive requests will likely be shot down. The more specific and relevant the request

is, the more likely it is to be granted. The challenge here is that you have to know what

you don’t know. If there are context clues on public posts that create an expectation

that relevant material may be in private posts, that is a strong place to begin the request.

The less someone shares publicly, the harder it will be to access information they keep

privately.

This creates a temptation to find a way to get a peek at non-public information. On

Facebook, people who are “friends,” can see much more information than people who

are not. Also, “friends of friends” see more information than people who are

separated by more than one degree.

Submitting a friend request to a person involved in litigation for the purposes of

viewing private social media posts is an ethical violation. The American Bar

Association Formal Opinion 446, which covers social media jury investigations,

considers a friend request to be contact. It makes sense that the Florida Bar Rule 4-4.2

governing communication with a person represented by counsel would follow a similar

standard.

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http://www.floridabar.org/divexe/rrtfb.nsf/FV/D9F2CB6782C1A3A585257171006BBE07

What if a witness to a case is a “friend” of a litigant and willing to share their access to

their social media, and therefore enhanced access to the litigant’s posts? In the case of

US v. Meregildo, the New York Southern District decided that law enforcement did not

violate the defendant’s Fourth Amendment rights when it gained probable cause to get

a warrant after viewing the defendant’s social media posts through the account of a

cooperative witness. If accessing someone’s social media through a cooperative

witness is okay for law enforcement for law enforcement, the ground work has been

laid for the practice to be acceptable for litigants, although the ethics of this is untested.

http://nysd.uscourts.gov/cases/show.php?db=special&id=204

Authenticating Social Media Discovery Once you’ve found information on social media, you have to understand that it is not

automatically self- authenticating. We’ve seen social media discovery completely

discredited by a claim that an account was hacked, or even on the suspicion that login

credentials had been shared. Moreover, context is critical for establishing the meaning

of social media posts. Consider the case of the self-described “pothead princess” who

tweeted “2 drunk 2 care” shortly before killing two people in a head on collision. After

some speculation that the tweet provided mens rea for a second degree charge, she

ultimately faced charges of DUI manslaughter and vehicular homicide. Her boyfriend

claimed the tweet was meant for him because they had been fighting.

http://www.nydailynews.com/news/national/pothead-princess-tweeted-2- drunk-2-care-

fatal-drunken-wreck-arrested-booked-5-months-article- 1.1749462.

One of the most effective ways of authenticating social media posts is to get the author

to verify them. If you have the luxury of a deposition, you can show them the post and

ask them under oath if they wrote it. The more surprised they are, the more likely you’ll

get an honest answer. This technique has worked in trial as well. In the Zimmerman

case, social media content was used to impeach the credibility of a witness, and the

witness authenticated her own Facebook page while on the stand.

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Most social media companies, Facebook and Twitter included, allow users to download

activity logs. These logs may include information about when certain posts were made

or modified, and it may include the IP addresses used to access the account. When it

comes to authentication, this information may not verify who made any specific posts,

but it will indicate when and from what device, which will go a long way to

authenticating a post. The trick is getting access to these user logs.

Issuing Subpoenas Directly to Social Media Companies What has become clear is that you’ll have very limited luck issuing subpoenas directly

to social media companies. Facebook cites the Stored Communications Act, 18 U.S.C.

§ 2701 when it proclaims it “does not allow third parties to obtain account contents.”

Most other social media companies have similar policies, and any effort to challenge

these policies will almost certainly fail and take longer than the larger litigation.

http://www.law.cornell.edu/uscode/text/18/2701

https://www.facebook.com/help/133221086752707

The Stored Communications Act does not, however, pertain to law enforcement, and

LEO agencies are able to get access to profile content direct from social media

companies. Facebook has clear guidelines on how they cooperate with law

enforcement. When Twitter lost its 2012 fight against providing account details to law

enforcement in the case of New York v. Harris, a precedent was set that law

enforcement doesn’t need a warrant to access user information, a subpoena will do. In

criminal defense work, it is important to know that prosecutors may have access to a

client’s social media posts, and if they intend to use that information, it should be

disclosed in discovery. It also means that criminal defense attorneys should know

what kind of content is on a client’s social media feed.

https://www.facebook.com/safety/groups/law/guidelines/

http://www.dmlp.org/threats/new-york-county-v-twitter-inc-subpoena

While it is monumentally difficult for anyone outside of law enforcement to get

specific content direct from social media companies, it is possible to obtain basic

account information that could be useful in authenticating ownership of an account.

Each social media company has different hoops to go through to acquire this

information, and Facebook requires a Federal or California subpoenas before they will

comply.

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When it comes to defense attorneys and civil litigants, social media companies would

prefer not to be involved. They want litigants themselves to comply with their own

discovery obligations. In the case that a litigant does not comply, attorneys must argue

a Motion to Compel and get a court order for the owner of the social media account in

question to comply. If the order is not followed, social media companies, if properly

engaged can be compelled to release specific information.

Litigation Hold The chance that you’ll be able to access critical social media information increases

greatly if the party in question doesn’t delete information from their account.

Information on social media is discoverable, and therefore deleting social media posts

can be considered spoliation of evidence. We have learned this from the now-famous

case of Lester v. Allied Concrete Co., No. CL08-150 (Va. Cir. Ct. Sept. 01, 2011) ,

where the attorney and a paralegal advised plaintiff to “clean up” his Facebook page by

removing 16 photos – including a photo of their client holding a beer and wearing a “I

<3 Hot Moms” t- shirt. Ultimately, the court issued sanctions that cost the lawyer over

half a million dollars and the client

$180,000, and later the Virginia State Bar ordered a 5-year suspension for the lawyer.

While the severe punitive nature of the fines was mostly in response to that fact that

plaintiff and counsel misrepresented their efforts to withhold this information--the

message was, nonetheless, very clear: in litigation, delete social media posts at your

own peril.

http://www.courts.state.va.us/opinions/opnscvwp/1120074.pdf

http://www.vsb.org/docs/Murray-092513.pdf

When litigation begins, it should be standard practice to inform your clients not to

delete anything from their social media accounts. They should not deactivate their

account, and they should not make any significant changes as even the simple act of

changing a profile picture has been considered spoliation as in Katiroll Company, Inc.

v. Kati Roll and Platters, Inc., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011). If you choose

to maximize the privacy settings of the accounts, it’s important that all information on

the accounts is preserved so it can be provided if the court orders. Conversely, it is

good practice to issue a litigation hold notice to all parties that specifically addresses

social media. Should you have to fight in court for access to important accounts, the

litigation hold notice will significantly enhance your position.

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LinkedIn Most people who have been involved in the professional world in the last 5 years will

have a LinkedIn profile. Retirees, government employees, and young people are the

least likely to have a profile, but better than half people between the ages of 25 and 55

will very likely have a presence there. Often there is little of substance on LinkedIn,

but it’s an opportunity to confirm a parties or potential witness employment claims,

find a profile photo, and get a brief professional resume. If you’re lucky, you’ll find

external links leading to websites, blogs, other social media profiles, and email

addresses.

One thing to be wary of when researching on LinkedIn is that, by default, users can

see who has viewed their profile. The American Bar Association Formal Opinion 466

very clearly states that this type of notification in not considered “contact”; however,

be aware that a party or potential witness may become aware of the inquiry.

Facebook If someone is involved in social media at all, they will likely have a Facebook page.

Women are more likely than men to be on Facebook, and believe it or not, people 30

through 60 are more likely to be active on Facebook than twenty-somethings.

Facebook was once a wide-open place, but there has been

a trend of users tightening their privacy settings. If you are not a “friend” with a person

on Facebook– and you should never be “friends” with a party or potential witness –

what you can view on their profile will likely be limited. For most subjects, expect to

find a profile picture, a list of “friends,” a list of pages that they “like,” some

photographs, and a few select posts.

Twitter Twitter does not have nearly the adoption rate of Facebook or LinkedIn, and users are

not required to use their real names, so they can be difficult to associate with

individuals in the venire. Nonetheless, some people can be found on Twitter, and if they

are on Twitter, it is likely that their tweets are completely public. You can scroll

through their timeline and read every tweet they’ve written. In our efforts, we seldom

go back more than six months or a year, and we focus our efforts on any comments that

may reveal information regarding a party or potential witness.

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Other Networks Instagram, Tumblr, Pinterest, MySpace, Google+, Blogger, YouTube: these are other

networks where you may find information about a party or potential witness. Each of

these networks have some obstacles that keep them from being reliable sources of

information. Most of them don’t have high adoption rates. Instagram is widely used,

especially by millennials, but most don’t use their real names, which makes finding

them exceedingly difficult. Tumblr, Pinterest, and YouTube present similar challenges.

This is where the law of diminishing returns kicks in; the deeper you search, the harder

it is to find and verify information.