Some courts have allowed a workaround in which the court orders the opposing party to “consent” to the social media provider’s disclosure of social media content, followed by a “consensual” request sent to the social media provider.
Every litigator knows that people often send unguarded messages through electronic mail that damage their position in litigation, making such messages a priority for discovery in civil litigation. People often post even more intimate information on their social media accounts.
Dan Prywes, Morris Manning & Martin, Atlanta.
Accordingly, social media postings are becoming a prime target in litigation.
Lawyers can try to obtain the social media content of witnesses and opposing parties in two ways: “self-help” efforts or formal discovery procedures.
No ethical rule precludes a lawyer from looking online at the publicly available social media profile or content of a witness or an opposing party. However, lawyers must be careful when seeking “private” social media content that the posting party has restricted to “friends” or others.
A lawyer should not directly contact an opposing party to request access if that party is represented by counsel. There are a variety of views as to what a lawyer must do when contacting a witness or opposing party who is not represented by counsel to request access to private social media posts. The New York State Bar (which surveyed ethics opinions elsewhere) advises that the lawyer may request access to the restricted content, but must (a) use the lawyer’s full name and an accurate profile that does not mask the lawyer’s identity and (b) respond truthfully to inquiries about the nature of the lawyer’s interest. (See www.nysba.org/FEDSocialMediaGuidelines). Some states’ bar authorities have required greater disclosures when counsel initially requests access to an unrepresented person’s restricted content.
Lawyers may ask a “friend” of the posting party—who has been permitted access to restricted content—to share that content with the lawyer on a voluntary basis. However, one court has ruled that “coerced” assistance violates the federal Stored Communications Act.
Lawyers should also not seek to obtain unauthorized access to a person’s restricted social media content through any sort of trickery. Such action could result in claims for invasion of privacy and/or misrepresentation. Courts have ruled that a person’s privacy interest is not extinguished because the person chose to share information with a limited number of persons in a restricted portion of a social media site.
Statutory claims for unauthorized access might also be asserted under the federal Computer Fraud and Abuse Act or the SCA or one of many state statutes that prohibit the online impersonation of another person to obtain a benefit or defraud. (e.g., Ga. Code § 16-9-93(c).) Finally, lawyers should not ask their staff to engage in conduct that would ethically be forbidden to the attorney.
Many courts have ruled that social media providers (like Facebook) are barred by the federal SCA from responding to civil subpoenas for social media content. Some courts have allowed a workaround in which the court orders the opposing party to “consent” to the social media provider’s disclosure of social media content, followed by a “consensual” request sent to the social media provider. Otherwise, social media content is discoverable in civil litigation only from the persons who posted or received the information.
Many individuals regard their restricted social media content as strictly private and are surprised to learn that there is no legal “privacy” privilege for such content. In some cases, individuals have deleted their restricted social media content to thwart discovery and have faced heavy sanctions for spoliation of evidence.
While there is no privacy “privilege” for social media content, many courts are reluctant to permit broad “fishing expeditions” through all of a person’s restricted social media content and will limit or disallow broad discovery requests. A few courts have gone so far as to require a party seeking to discover social media content to make a threshold showing based on other information that there is social media content that undermines the responding party’s position in the litigation.
Discovery is generally permitted of any social media content that directly sheds light on disputed facts in a lawsuit, subject to a protective order as needed. For example, if a plaintiff claims that she was injured because of a product defect, virtually anything the plaintiff posts on social media about the product or the defect should be discoverable.
Courts are particularly cautious about allowing unfettered discovery of anything posted on social media that shows a party’s emotional state. Significant discovery of such material may be permitted where, for example, a plaintiff seeks damages for his or her emotional distress, or where emotional distress is pertinent to liability (as in a hostile work-environment discrimination claim). But even then, some courts will not permit discovery of social media content where the emotional distress claims involve only “garden variety” distress—namely where a plaintiff claims only hurt feelings or a sense of humiliation—and not more serious distress such as panic attacks or depression.
Photographs posted on social media can provide powerful evidence, because a “picture is worth 1,000 words.” Courts have permitted discovery of photographs where the photographs reflect physical capabilities inconsistent with a plaintiff’s claimed injury or if they reveal the party’s emotional or mental condition in a case where that is relevant.
Some courts have ordered a party’s attorney to screen the client’s social media content for relevance and privilege because of concern that the client will withhold content that he or she feels is private and personal.
Once litigators obtain social media content, they must ensure that it can be authenticated for use at trial or in other proceedings. Authentication can be a challenge, since social media accounts can be falsified, hacked or created by an imposter. For these reasons, social media content is not self-authenticating, and some other evidence is needed for it to be admissible.
However, authenticating evidence can be circumstantial, and courts have ruled that the proponent of the evidence need only submit enough evidence (such as distinctive format or language of the posted content) for a “reasonable jury” to find the content to be authentic. (See In the Interest of L.P., 324 Ga. App. 78 (2013).) Accordingly, lawyers should always take whatever discovery is necessary to prove the authenticity of any social media content that is useful, especially for the “bombshell” social media content that litigators all hope to find.
About the Author
Dan Prywes is a partner in Morris, Manning & Martin’s litigation practice.