Social media and discovery

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s column is written by Karen Munoz.

Last week’s post was a brief discussion of some of the Do’s and Don’t’s of using Twitter for lawyers. This week’s post is also about social media and the law. Anyone who has ever been involved in litigation where Facebook or other social media records were sought understands that it can be a very messy process. This post looks very briefly at a few of the very many issues that discovery of social media records presents.

1. Application of the SCA

The Stored Communications Act, among other things, limits the discoverability of electronic communications stored by different types of Internet service providers. It generally prevents the relevant service providers from disclosing their users’ electronic communications without a search warrant. So, does the SCA apply to social media?

A recent 9th Circuit decision (Crispin v. Christian Audigier, Inc.) reversed the decision of the lower court and ultimately held that social media sites were covered by the SCA. The judgment engaged in a detailed analysis of the differing types of privacy interest that arise with different types of communications on the social media sites (e.g. private messages versus wall posts on Facebook). While the case is far complex than it is presented to be in this post, it also leaves some questions open concerning the more “public content” like wall posts.

2. Other Approaches

Some courts look instead to the basic principles of evidence like relevance. In a recent New York Appellate Court judgment, the court rejected a defendant insurance company’s demand for authorization to see the plaintiff’s Facebook records, labeling it a “fishing expedition.” The case involved a personal injury as a result of an auto accident and the plaintiff, having fully recovered from the motorist involved, sought to recover underinsurance coverage from her own carrier. The plaintiff’s carrier then sought access to her Facebook records in the hope of finding some evidence that the plaintiff was exaggerating her claims. However, the court held that the defendant insurer “failed to establish a factual predicate with respect to the relevancy of the evidence.”

Another New York Appellate Court did allow discovery of Facebook records in similar circumstances where the defendant did establish a factual predicate. In that case, the plaintiff’s public Facebook profile picture seemed to conflict with the plaintiff’s claims about being confined to bed as a result of the injuries sustained and the court granted the defendants access to all the plaintiffs’ Facebook records.

While discovery of further material which would potentially disprove the plaintiff’s claims is no doubt relevant, the opinion raises a number of other issues. Firstly, it almost completely ignores the question of whether the SCA applies to social media. Secondly, the judgment granted discovery of everything on the plaintiff’s Facebook account; a lot of this is arguably private information that had absolutely no bearing on the case. And third, the court found that users have no reasonable expectation of privacy in content they upload to Facebook and this conclusion fails to give any consideration to the different types of communication permitted on social networking sites.

So it seems that Facebook discovery battles will continue to be quite messy for the foreseeable future.

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