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Defendants ordinarily hate e-discovery – that is, the discovery of electronically stored information. It’s horrendously expensive (courts almost always stick defendants with the lion’s share of the cost), the amount of data involved in big cases can be overwhelming, and there are so many nooks and crannies that it’s terribly easy to screw it up. From our own personal perspective what might be even worse is that there’s nothing in our training or background that gives us a good feel for it. We don’t understand most of the technical computer stuff (we’re Luddites, remember) and that means we’re almost totally at the mercy of the folks we hire as consultants. Sometimes it’s hard for us to tell if we’re doing a good job or not. We hate that.
Plaintiffs love e-discovery because they can impose massive costs on defendants and then sit back and snipe over whether or not we’ve done a good job. Of course, they’ll say we didn’t; they’ll have their consultants throw a bunch of gobbledygook; and they’ll file some motion laced with the usual invective. Our consultants will provide us with gobbledygook of our own to throw back at the plaintiffs. Then everything gets decided by a judge or discovery master, probably even less familiar with all the jargon than we are, and it’s a crapshoot. Who can tell what’s going to happen?
Plaintiffs also like e-discovery because they see it as a free shot. Our big corporate clients are the ones with all the big computer systems, after all.
But it’s not always a free shot – not any more. In this age of Facebook, MySpace, and dozens of similar social networking websites, maybe there’s something out there that we can use to help defend our cases. Maybe the plaintiff put a video of him/herself on YouTube that contradicts his/her claimed injuries. There could be interesting stuff that we’d like a jury to see.
The first thing we would do, obviously, is Google the plaintiff. If s/he has a public online account, then we (or investigators we hire) can just take a look, take screen shots, download videos, etc., and have the plaintiff authenticate them later. It’s no different than hiring somebody to take a surveillance video of a plaintiff suspected of malingering. That’s done all the time, and we’ve won our share of cases with good surveillance tapes.
That’s what can be done if it’s a public account.
One thing we don’t recommend doing is having somebody try to become a plaintiff’s “friend” in order to gain access to non-public material. That would probably be viewed as an end run around a represented person’s counsel. Doing that is considered unethical in most if not all jurisdictions. Sure, we can see distinctions that could be drawn, but it’s a close enough call that it’s not a fight we’d choose to pick. We’re not inclined to draw down our credibility with a court over that kind of thing.
In appropriate cases, we might think about seeking the identities of a plaintiff’s online “friends” and treating them as any other fact witnesses. We might be able to subpoena their access to the plaintiff’s private areas. We just thought of that, and we’ll have to think about that aspect of this problem a little longer before doing anything more than just pointing out the option.
It’s also fair game to subpoena MySpace, FaceBook, etc. – as early in the litigation as possible – to seek the contents of a plaintiff’s entire account, public and private. Such subpoenæ (don’t you just love Latin plurals?) should also demand that the providers prevent the deletion of any information contained in those accounts.
That last thought – preventing deletion – is of critical importance.
We know how plaintiffs are. If we start seeking this information in discovery, and there’s something really juicy out there, there’s a good chance (a lot better chance, we’d say, than big corporate defendants with document retention policies) they’ll try to sanitize their space – probably without bothering to tell their lawyers. That’s spoliation, the destruction of evidence. If plaintiffs want court orders restraining our clients from deleting electronic material, we think turnabout’s fair play, and any such court order should also prohibit plaintiffs from deleting material from their own social networking sites.
Beyond that, if plaintiffs get caught destroying evidence (the technical aspects of doing so being beyond us), then they’re going to be a lot less credible to the court when, virtually inevitably, they start making the same allegations against us. Spoliation allegations are all the rage in e-discovery, and a lot of plaintiffs’ counsel would rather litigate that than the questionable merits of their cases.
Another way to find out about a plaintiff’s online social networking activity is to ask him or her about it in a deposition. We’d be sure to have a computer with Internet access set up at the deposition site when doing this. There’s nothing in the rules that prevents us from requiring the plaintiff to log into his or her space on the web and show us around. Except for the medium, it’s no different than having the plaintiff produce and go through a written diary.
We ran a couple of searches to see if this kind of discovery has ever been litigated. We searched for “discover!” or “subpoena!” in the same paragraph as “social network!” or the specific names of several of the big sites. We checked both Lexis and Westlaw. We found exactly one on-point case.
That’s Mackelprang v. Fidelity National Title Agency, Inc., 2007 WL 119149, 2007 U.S. Dist. Lexis 2379 (D. Nev. Jan. 9, 2007), a sexual harassment case where the defendant wanted to find out whether the plaintiff engaged in precisely the same sort of sexually suggestive back-and-forth online that she was calling harassment in her employment discrimination suit. Most of the opinion is about issues that peculiar to the sexual nature of the requested discovery, but the court did allow discovery of (1) online activity around the time of the plaintiff’s claimed suicide attempt, (2) site information relevant to plaintiff’s claimed emotional distress, (3) any online statements plaintiff might have made about her lawsuit (4) discovery of what online accounts plaintiff did maintain. The discoverable information included both the plaintiff’s own emails and her MySpace private messages. Id. at *7-8. Discoverable information “d[id] not include private email messages between Plaintiff and third persons regarding allegedly sexually explicit or promiscuous emails not related to Plaintiff’s employment.” Id. at *8.
Sex is always a touchy subject. With a case where the plaintiff alleges damages including loss of sexual function or interest, then we think we’d be in a lot stronger position to get that type of material than was the former employer in Mackelprang. In our case, the plaintiff would have put his/her sexual activity at issue. In a harassment case, there’s a powerful argument that, just because a plaintiff does something in his or her private life, that doesn’t mean s/he invites the same conduct while at work.
If the plaintiff is claiming personal injury however, then anything inconsistent with the claimed injury is relevant as (at minimum) impeachment evidence, wherever it occurs. It’s like surveillance, except that, in the case of social networking, the plaintiff is surveilling him or herself. Legally, that would be an admission, and that makes getting it into evidence (assuming we can jump through the hoops of authenticating electronic evidence).
Depending on the nature of the plaintiff’s injury claim, we’re either going to be very interested in sexual matters or we’ll have no interest at all. If it’s not relevant, we’re not going to be blowing our credibility with the court seeking something just because it might make our opponent uncomfortable. We don’t litigate that way, and we don’t recommend that others do either.
Another thing we found when poking around was this excellent piece on the Defense Research Institute’s website. It’s got a case study – some plaintiff posted a very revealing video of himself on MySpace – as well as a detailed discussion of the finer evidentiary points posed by this type of electronic evidence. The DRI piece also means that there are some smart defense-oriented folks out there thinking about this kind of thing, not just us bloggers. That’s good to know.
The takeaway is simple. Defendants shouldn’t let their dislike of e-discovery blind them to its potential advantages in a world where more and more people – and thus more and more plaintiffs – have their own electronic footprint on the Internet.