More than three years ago, back in February, 2008 we put up a post about e-discovery for defendants. After the usual lamentations about how e-discovery imposed asymmetrical burdens on defendants – since defendants have a lot more “e” to discover – we offered what we hoped were some helpful hints and observations about how that asymmetry could be reduced to some extent.

Over the years, we’ve returned to the subject occasionally.

Well it just so happens that the topic of the latest PLAC spring conference was the impact of social media on the litigation process in product liability litigation.  One of the topics was – you guessed it – e-discovery for defendants.

To recapitulate:

Most of the people in this country (71%) use sites like Facebook, YouTube, Twitter and the like. Most people means most plaintiffs. Thus, a defendant in a product liability suit needs to have an e-discovery strategy.  There must be quality control.  A lot the private eyes that we use for surveillance and other forms of information gathering directed against plaintiffs probably are not schooled in the ethics of social media investigation.

One thing that’s happened recently is that various groups have started weighing in on what’s “ethical” in terms of social media investigation. Here’s an opinion issued by the Philadelphia Bar Association.  It concludes attorneys can’t use agents to “friend” witnesses (and presumably parties) in order to examine their Facebook-type accounts to look for cross-examination fodder.  Here’s an even newer opinion from the New York City bar restricting attorneys from contacting witnesses on social networking sites and using “trickery” to seek online material for litigation purposes.

The ethics issue that we raised in our original post – that defense attorneys should avoid trying to “friend” plaintiffs to get a look at non-public parts of their social media webpages – has also been the subject of an ethics opinion, saying that it’s a no-no.  No surprise there.  But the opinions agree that it’s perfectly OK to use the public portions of an opponent’s pages for litigation purposes.

There’s also no impediment to seeking social networking webpage information through discovery.  One line of discovery that should be pursued is a complete list of a plaintiff’s Internet aliases, which could be extensive and vary from site to site.  But be careful what you ask for, since the plaintiff could make the same requests of your client or its employees.  At the outset, it’s probably best just to get a list of aliases and sites.  That seems to us to be classic “reasonably calculated to lead to the discovery of admissible evidence” inquiry.

More intrusive discovery – the substance of a plaintiff’s activities on such sites, probably needs to be more finely tailored, to sites that seem relevant to the litigation:

[T]he appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for [plaintiffs] for the [relevant time] period . . . that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010) (discovery in a case alleging emotional distress).  Or, as a Canadian court put it:

I do agree . . . that mere proof of the existence of a Facebook profile does not entitle a party to gain access to all material placed on that site.  Some material may relate to matters in issue; some may not. Rule 30.06 requires the presentation of some evidence that a party possesses a relevant document before a court can order production.  Most often such evidence will emerge from questions asked on a party’s examination for discovery about the existence and content of the person’s Facebook profile.  Where the party’s answers reveal that his Facebook profile contains content that may relate to issues in an action, production can be ordered of the relevant content.

Leduc v. Roman, 2009 CarswellOnt 843 ¶33 (Ont. Super. Feb. 20, 2009).

Another thing that potentially makes plaintiff e-discovery easier – at least from Facebook – is the recent addition of an option by which a user can download to a “zip” file all the material, whether text, videos, or photos, that a user (presumably the plaintiff) has ever placed on his/her page.  Here’s a description of how that works.  We don’t know whether other, similar sites also provide this option, but once you have obtained the plaintiff’s affiliations through discovery, then you can try finding out.  Particularly with this kind of tool available, there should be no doubt that a plaintiff had custody and control over his or her own social media postings.  See Arteria Property PTY Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696, at *5 (D.N.J. Oct. 1, 2008) (“no reason to treat websites differently than other electronic files”; party with control over the content posted on a website held to be in control of the content, even if an intermediary runs the website).

And then there’s the lovely matter of litigation holds.  For you non-lawyers (if for some bizarre reason you’re still reading), a “litigation hold” what a possessor of potentially discoverable information does to preserve documents and e-documents when litigation is threatened or filed.  Every pharmaceutical mass tort, and a lot of cases that aren’t pattern litigation, prompt the targeted defendants to issue one or more “litigation holds” to stop the routine destruction of potentially discoverable information (both paper and electronic) to avoid the plaintiffs trying to accuse them of spoliation of evidence.

One of the opening rituals of many mass torts is the plaintiff side typically rushing into court to get the court formally to order the defendant to put in place the most onerous litigation hold regime that the plaintiff can think of.  That sort of thing has heretofore been asymmetrical – only defendants have been the targets of litigation hold motions.

We think that should change.

Defendants should consider tit for tat.  If the plaintiffs are seeking court orders to prohibit the defendants from writing over or otherwise destroying electronic files, then defendants are equally justified in putting plaintiffs under the same obligations with respect to social media.  Plaintiffs should be equally subject to litigation hold orders.  Just as plaintiffs delight in determining how thoroughly defendants disseminate litigation holds throughout their organizations (and in seeking sanctions if the defendants didn’t go far enough to suit them), so should defendants hold opposing counsel to analogous obligations.  Not only should courts order plaintiffs in mass torts to cease and desist from deleting information from their social media sites, they should be subject to the same obligations as defendants to demonstrate that plaintiff-side litigation hold orders are thoroughly disseminated and properly understood.  In short, make the plaintiffs’ lawyers actually talk to their clients.  Indeed, since plaintiffs are generally less knowledgeable about what a litigation hold order requires them to do than custodians of corporate records, it is probably more important to require direct contact to ensure that hold orders on the plaintiff side are in fact appreciated by relatively unsophisticated plaintiffs.  We’re not aware of this yet being done yet in the United States – by all means tell us if we’re wrong – but a litigation hold order precluding plaintiff from deleting social media information was recently issued in Canada.  See Sparks v. Dubé, 2011 CarswellNB 80 ¶¶52-58 (N.B.Q.B. Feb. 4, 2011).

Defendants should consider seeking appropriate litigation hold orders to prevent plaintiffs in mass tort litigation from destroying relevant information on social media sites.  Depending upon what injuries are alleged (such as diabetes), other potential causes of such injuries (most conditions have non-drug/device-related risk factors), and what damages are claimed (such as being totally disabled), the amount of relevant information to be gleaned from a plaintiff’s social media sites could be extensive.

At the PLAC meeting, we also discussed the burgeoning social media/discovery precedent that’s coming into existence.  Back when we first posted on e-discovery for defendants, we could find only one case, Mackelprang v. Fidelity National Title Agency, Inc., 2007 WL 119149 (D. Nev. Jan. 9, 2007), addressing social media and discovery.  Mackelprang held that social media (MySpace, in that case) was generally discoverable, id. at *7, but from the plaintiff and not by means of a subpoena to the social media site itself:

The proper method for obtaining such information, however, is to serve upon Plaintiff properly limited requests for production of relevant email communications. . . .  [N]othing in this Order prevents Defendant from conducting appropriate discovery to determine whether the Myspace.com accounts do, in fact, belong to Plaintiff.

Id. at *8.

Another reason to avoid subpoenaing social networking sites in the first instance is uncertainty over whether they are protected from direct discover under the federal Stored Communications Act (“SCA”).  Although the SCA has usually been limited to email and other private communications, we’ve come across a case holding that even publicly available social media “walls” might be subject to the SCA, and thus immune from subpoena:

With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record . . . is not sufficient to determine whether the subpoenas should be quashed. . . .  This information admits of two possibilities; either the general public had access to plaintiff’s Facebook wall and MySpace comments, or access was limited to a few. . . .  Because it appears, however, that a review of plaintiff’s privacy settings would definitively settle the question, the court . . . vacates [] and remands [for] . . . a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.

Crispin v. Christian Audigier, Inc., 717 F. Supp.2d 965, 991 (C.D. Cal. 2010).  The court did observe that applying this pre-Internet statute to current social media was difficult:

[T]he difficulty in interpreting the statute is compounded by the fact that the [SCA] was written prior to the advent of the Internet. . . .  As a result, the existing statutory framework is ill-suited to address modern forms of communication like Facebook and MySpace.  Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results. . . .  [U]ntil Congress brings the laws in line with modern technology, protection of the Internet and websites such as these will remain a confusing and uncertain area of the law.

Id. at 988 (citations and quotation marks omitted).

Of course, whenever a plaintiff gets to select, in the first instance, what online materials are to be produced, there will be an incentive to cheat.  Such cheating can result in sanctions – such as required production of everything on a social media site.  Bass v. Miss Porter’s School, 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009)  (in camera inspection revealed that plaintiff had withheld a large amount of relevant Facebook images and text; production of entire Facebook page ordered).

As for the most basic question, a bunch of cases have now held that a plaintiff’s relevant postings on social media – whether “public” or “private” – are proper subjects of discovery in civil litigation.  Simply Storage, 270 F.R.D. at 434 (“a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery”); Bass, 2009 WL 3724968, at *1 (the “relevance of the content of Plaintiff’s Facebook usage as to both liability and damages . . . should not be limited to Plaintiff’s own determination”); Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018, at *2 (D. Colo. April 21, 2009) (“the information sought within the four corners of the subpoenas issued to Facebook, My Space, Inc., and Meetup.com is reasonably calculated to lead to the discovery of admissible evidence”); Beye v. Horizon Blue Cross Blue Shield, 2007 WL 7393489, at *2 n.3 (D.N.J. Dec. 14, 2007) (“requir[ing] production of entries on webpages such as ‘MySpace’ or ‘Facebook’ that [plaintiffs] shared with others”); McCann v. Harleysville Insurance Co., 910 N.Y.S.2d 614, 615 (N.Y.A.D. 2010) (“the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff’s Facebook account at a future date”); Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (N.Y. Sup. 2010) (“it is reasonable to infer from the limited postings on Plaintiff’s public . . . profile pages, that her private pages may contain materials and information that are relevant to her claims”; plaintiff could not “hide relevant information behind self-regulated privacy settings”); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. Jefferson Co. Sept. 9, 2010) (“no ‘social network site privilege’ has been adopted”; when “a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit . . . access to those sites should be freely granted”); cf. B.M. v. D.M., 2011 WL 1420917, at *5 (N.Y. Sup. April 7, 2011) (plaintiff’s admissions in blog were relevant and admissible).

Finally, there are a fair number of Canadian cases that also address discovery of social networking material. These cases have (probably to the profound discontent of some Tea Party elements) been cited in several of the U.S. decisions on the subject.  See Kent v. Laverdiere, 2009 CarswellOnt 1986 ¶33 (Ont. Super. April 14, 2009) (plaintiff claiming disfigurement and reduced enjoyment of life had to produce social networking photographs showing her in healthy state and/or enjoying life); Leduc, 2009 CarswellOnt 843 ¶23 (that “a person’s Facebook profile may contain documents relevant to the issues in an action is beyond controversy”); Id. ¶ 32 (“[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”); Bishop v. Minichiello, 2009 CarswellBC 871 ¶¶53-56 (B.C. April 7, 2009) (granting production of plaintiff’s hard drive to determine how much time plaintiff spent on Facebook); Murphy v. Perger, 2007 CarswellOnt 9439 ¶20 (Ont. Super. Oct. 3, 2007) (plaintiff has no “serious expectation of privacy” in private social media site to which over 300 people have access).

With the use of social networking sites becoming ubiquitous, e-discovery by defendants should no longer be the exception, but the rule, in drug and device personal injury litigation.  In mass torts, defendants should, as much as possible, treat such e-discovery on par with e-discovery demands made by plaintiffs, and seek to include provisions dealing with social networking information in MDL-wide pre-trial orders governing both preservation of evidence and discovery generally.