Social media discovery has long been used in family and criminal litigation, and it can be more widely utilized in casualty litigation as well. Indeed, it is not uncommon to come across a timely post from the plaintiff describing how an accident occurred or a date-stamped admission of being “pain free.” Moreover, plaintiff’s job search, work history, and even party habits are sometimes recorded on these platforms.
A number of defense attorneys have asked me how to capture and utilize this type of social media discovery, so I prepared this short primer on utilizing Facebook data. Fortunately, the pattern of collecting, authenticating, and utilizing Facebook data can be replicated across many social media platforms with minor adjustments.
Initially, an attorney should determine the extent of plaintiff’s Facebook data that is publicly available. There is no need nor excuse to use deception in viewing the truly public information. Simply log into one’s own Facebook account and search for the plaintiff and plaintiff’s known aliases. If the public information is valuable, capture it by (1) contracting with a third-party vendor or (2) using the “print screen” function and copying the relevant screen shots. Note that if you use the cheap and quick method of capturing screen shots, these particular documents are unlikely to be admissible in that form. That is, an attorney would be wise to avoid having to personally authenticate the information she captured. A third-party vendor, however, could be relied upon to both capture the data in a usable form and to provide an affidavit regarding the authenticity of the data. Of course, obtaining an affidavit of authenticity from the vendor at the time of the search and capture is recommended.
Specific discovery requests regarding social media data should be standard, much like those requesting the plaintiff’s cell carrier and phone number. An example request for production states:
Produce a copy of your Facebook data. This may be accomplished by (1) signing into your profile; (2) selecting “account settings” from the dropdown menu at the top of the page; (3) selecting the “Download a copy of your Facebook data” link towards the bottom of the page; (4) selecting “Start My Archive”; and (5) confirming the download and saving the data.1)The instructions for downloading one’s own data can be found at https://www.facebook.com/help/131112897028467/.
Please note that you are not to delete or modify any historical data (data posted prior to [date of accident]) prior to the time such data is turned over to counsel for Defendants, and a violation of this instruction may be construed as spoliation of evidence.
A defense attorney should be prepared to compel the production of this data, as plaintiffs and their attorneys will nearly always try to avoid producing it. Being armed with the screenshots or data captured prior to issuing formal requests will certainly work in your favor, though often the public data alone may not be sufficient to demonstrate the presence of discoverable information. Even absent the screenshots or other data captured from the public profile, the defense attorney may have success arguing that the expected contents of the Facebook data—including pictures of plaintiff throughout his recovery, real-time snapshots of the plaintiff’s “status” on and around the date of the injury, and real-time snapshots of the plaintiff’s activities throughout the recovery period—far exceed the “calculated to lead to the discovery of admissible evidence” threshold. Examples of highly relevant Facebook data discussed in recorded cases are both accessible and helpful to the motion.
Plaintiffs may also counter with confidentiality and privacy concerns. While a competent discussion of these issues is beyond the scope of this post, a growing number of courts are recognizing that a plaintiff’s privacy interest in material posted online is minimal. See, e.g., Nucci v. Target Corp., 162 So. 3d 146, 151 (Fl. 4th Dist. Ct. App. Jan. 7, 2015) (“[Plaintiff] has but a limited privacy interest, if any, in pictures posted on her social networking sites”). At a minimum, the blanket refusal to provide any of the requested Facebook data because of privacy concerns should fail.
A litigant successful in obtaining the Facebook data should receive an electronic file with the following folders: html, photos, and videos (if there are any), along with a file named index.
The files titled “messages” and “wall” that are located within the html folder will often be the most valuable. If these files are extensive, word searches of the files and of particular dates may be more efficient than reading from beginning to end. The photos folder should be reviewed, and the index could be useful. There may be two photos folders, one within the html file and one located in the initial window, and the folder located within the initial window will contain the actual photographs. Also note that many of the files will open in an internet browser; using the “print to pdf” function of your browser to convert these files will result in more navigable documents with page numbers. Whether or not the other files contained within the Facebook data are useful will be case specific.
Note that civil discovery directed to Facebook, or any other social media platform, will fail. The Stored Communications Act mandates this result, and only law enforcement will be able to overcome this obstacle. See 18 U.S.C. § 2701(a)(1). Accordingly, the request of a waiver from plaintiff for the disclosure of social media content will usually be a waste of time.
Finally, despite the prevalence of discovery and admissibility fights over Facebook data, many states have yet to settle on uniform standards regarding the discoverability and use of the data. Naturally, this landscape of caselaw will evolve rapidly over the next few years.
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|1.||↑||The instructions for downloading one’s own data can be found at https://www.facebook.com/help/131112897028467/.|