social media

 

Of the 7.5 billion people in the world, a staggering 3 billion are using social media. Suffice to say, this trendy method of communication stopped being a fad long ago, but the world of law is really just catching up. Woven into our global society, social media provides easy access to groups of like-minded people. These platforms give us the ability to share personal details with our extended circles and be informed in “real-time” of events traditionally reserved for the nightly news. From the lens of the law, the question then becomes, how does social media play a role in current and future litigation?

Based on our normal interaction with third-party platforms like Facebook, Instagram, Twitter and the like, most of us believe our online information to be private and secure. Right? Not really, not at all.

Third Party Doctrine

To be clear, the courts have stated that the Third Party Doctrine is dispositive. Meaning, once an individual provides a third party (like social media) with information, and voluntarily agrees to share that information with someone else (like the newsfeed or followers), that person loses any reasonable expectation of privacy.

Stated in the Yale Journal of Law and Technology, “…If the third-party doctrine governs social media behavior, then published content voluntarily shared among connections within a private social network loses all reasonable expectation of privacy, including any reasonable expectation that a user's connections will not turn over their social data to investigative authorities.”

Now, how is this doctrine applied within the courtroom? The jury is out on that.

Court Opinions Vary

The court has been inconsistent in how to fall regarding social media discovery. The way the law was applied in these two contrasting cases best characterizes this discrepancy.

Romano vs. Steelcase Inc.

Backstory: Kathleen Romano fell at work. She claimed to be permanently injured due to the fall and brought a case again her employer, Steelcase.

The Role of Social Media: During the proceedings, Steelcase subpoenaed her Facebook and Myspace pages. The request wasn't immediately granted. However, Steelcase pushed the envelope and moved to compel, stating that public information seen online indicated a lifestyle different than what the plaintiff was asserting in court (traveling, being very active, etc.). The court then decided that her social media presence “didn't come with a reasonable expectation of privacy.” It granted the motion to compel and gave the defendant full access to the plaintiff's current and historical Facebook and Myspace pages.

Tompkins v. Detroit Metropolitan

Backstory: Tompkins filed suit with Detroit Metro after slipping and falling at the airport. The plaintiff refused to voluntarily give the defendant unrestricted access to her Facebook information, including items that she has labeled as “private” or unavailable for public viewing.

The Role of Social Media: The defendant moved to compel (similarly to Steelcase) arguing that Tompkins' publicly available photos of herself brought into question the severity of her injuries. The court made clear that social media was discoverable, even things that were designated as private, but that there were limits to that discoverability. They ruled that the defendant did not, “have a generalized right to rummage at will through information that plaintiff has limited from public view.”

The court ruled that the defendant must make a threshold showing that publicly available information on social networking sites undermines the plaintiff's claims, and that searching through the entire account was considered overboard. As such, the defendant did not obtain the plaintiff's private Facebook information.

What Does This All Mean?

It means there really isn't a definitive solution or ruling here and that not one court has decisively found the right answer. Though one thing is for sure, the illusion of privacy is just that—an illusion.

While social media has been lurking in the background for years, it is now becoming a mainstream source of discovery. In fact, one of the most recent ESI (electronically stored information) orders filed (MDL 2740) has set precedent to egregious and over-burdensome searches across many personal data sources with a large focus on social media. This is one of the first times that social media has been included in such a broad fashion, but it certainly won't be the last.

As social media begins to weave into the norm of discovery, attorneys should be fully aware of this data source. One should make it common practice to:

  • Ask a client during their information gathering about usage of social media platforms;
  • Look at the client's social media history in advance in a secure way; and
  • Know that opposing counsel is looking, even if you are not.

Keep in mind, there are things you should not be doing to validate whether or not social media from your client is important for discovery. However, one must be aware that social media is out there and most people in the world use it. As an attorney, you need to inquire about posted content, determine if any of it should be discoverable, and be prepared for any motion to compel from the other side.

How do you as an attorney support this emerging discovery source? The best way is to partner with an expert in e-discovery who has the proper technological tools and understands the nuances of social media data.

 

Aaron Vick is Chief Strategy Officer for Cicayda, a legal technology firm that combines powerful cloud-based eDiscovery and Legal Hold software with analytics and legal expertise. Early in his career, Aaron was part of the Rocket Science team that designed the first document research product, CaseLogistix, for the legal discovery market. After CaseLogistix's acquisition by Thomson Reuters, Aaron played an integral part in developing its Litigation Product Specialists team.