Linkedin to Litigation: Social Networking as a Growing Source of Valuable Evidence

By Michael R. Ewing

Do you have a friend, or a handful of friends, who take the phrase "too much information" to a whole new level on their Facebook page? You know the type: this person updates his "status" 15 times a day to tell the world that he "had a really good floss before bed last night," or "is wearing a cool new pair of argyle socks today," or - my personal favorite - "still has the coolest life ever, especially in comparison to losers like Michael Ewing."

These people, well-meaning as they are, have much more to think about now than simply whether their friends will enjoy the content of their social networking page. In recent years, parties to litigation have begun seeking access to these websites and have had a great deal of success obtaining it, despite a host of objections from the person it belongs to. While that may come as a surprise to some people, the reason for this growing trend is really quite simple: what you say (or post or "tweet") about what's going on in your life, or in your business, is often directly related to a position you've taken in a pending lawsuit, especially when you share that information under the (mistaken) impression that it is "private." Online social networking, therefore, has become a valuable new source of evidence in litigation.

I. As Social Media Becomes More Prevalent, So Too Will Its Use in Litigation

The advent and use of social networking has been nothing short of a cultural phenomenon in the past decade. As of 2010, it was estimated that nearly half of the U.S. population maintained a profile on one or more social networking websites, like MySpace, Facebook or Linkedin. Indeed, MySpace reported 65 million active users last year, and Facebook reached an astonishing 500 million users, with predictions to surpass one billion by 2012. Twitter, the micro-blogging website and newest addition to the social networking frontier, has almost 200 million accounts and facilitates nearly 110 million "tweets" a day-all after getting off the ground just over three years ago. Businesses have also started to utilize these online mediums as valuable marketing and communication devices, and most companies have either a MySpace or Facebook page (or both) and release news about their products and services online via Twitter. As these new tools become more and more mainstream - both in our social interactions and our business endeavors - their relevance to the disputes that arise from those relationships will only increase.

To illustrate, a recent survey conducted by the American Academy for Matrimonial Lawyers revealed that two-thirds of these attorneys identified Facebook as their "primary source" of electronic evidence in divorce cases. As you might expect, the comments, photographs and "friends" on an estranged spouse's Facebook page can drastically change the landscape of even your typical divorce. Accordingly, the lawyers who handle those cases wisely review the other party's social networking activity for any evidence helpful (or harmful) to their case.

Other disputes are much the same. In Asanov v. Legeido, 2008 WL 4814261 (M.D. Tenn. Oct. 31, 2008), a former employee was sued for trademark infringement and intentional interference with business relations for posting, inaccurately, on his Linkedin profile that he was the owner of the company he had previously worked for. Id. at *3. That misrepresentation, the company alleged, was wrongfully used by the employee to further his job search and damaged its registered trade name by continually associating the company with the employee. Id. In criminal matters, a recent article from the Tennessee Bar Journal pointed out that prosecutors and parole officers are constantly reviewing individuals' social networking pages for - as Paul Harvey would call it - "the rest of the story," and defense lawyers are taking advantage of this information as well. David L. Raybin & Benjamin K. Raybin, What to Tell Clients about Facebook and Other Social Media Sites, 47 Tenn. Bar J. 3, 20 (March 2011). In a recent Nashville murder trial, the defendant was acquitted after the State's eye witness posted on her Facebook page that she really wasn't at the scene of the crime and had fingered the defendant only because he was her dead boyfriend's biggest rival. Id. As this case and countless others demonstrate, the content of social media has begun to play a critical role in litigation, and that role will only increase as these websites become more and more central to our everyday lives. Tell your Facebook-addicted friends, therefore, to beware.

II. How Do Parties Gain Access to Social Networking Content?

For litigators, of course, simply asking for this information isn't enough to get it. Satisfying the limitations on discovery is a necessary prerequisite to obtaining the information in the first place and later using it to your advantage at trial (or before). Moreover, if a non-party's social networking pages are important to your case, the Stored Communications Act presents its own obstacles to overcome, and none of the companies that run these websites are particularly anxious to turn over their users' information. However, a handful of courts have begun addressing these issues and have provided a small, although salient, sampling of authority to consult when disputes on the subject arise.

A. General Availability in Discovery

The kneejerk reaction most people have to the idea that they could be forced to disclose their social networking information is to object strenuously and claim that it is "private." That reaction, while understandable, has not fared well in courts across the country, as evidenced by a recent decision from Pennsylvania, McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Ct. Com. Pl. Sept. 9, 2010). There, the Court explains why the so-called "private" nature of online social networking provides no grounds for a legally-recognized claim of privilege or confidentiality.

In McMillen, the plaintiff sued for a host of injuries that he allegedly suffered after being rear-ended during a race on the defendant's property. Id. at *1. On the public portions of his MySpace and Facebook pages, however, he subsequently boasted about taking multiple fishing trips and attending the Daytona 500, which prompted the defendant to request his username and passwords in discovery, saying that such was relevant to his claimed injuries. When he objected on the grounds that the content of his social networking pages was privileged and confidential, the defendant promptly filed - and won - a Motion to Compel the information. Id.

The Court resoundingly dismissed the plaintiff's claim for privilege and effectively dispelled any notion that social networking content is private. The Court began by noting that "[c]onfidentiality is not essential to maintain the relationships between and among social network users," and "[t]he relationships ... fostered through these media are basic friendships," not - like most other privileges - professional relationships dependent upon the confidential exchange of information. Id. at *3. Moreover, the "terms and privacy policies [of these websites] should dispel any notion that the information one chooses to share, even if only to one friend, will not be disclosed to anybody else." Id. at *2. After all, there's nothing to stop one of your friends from viewing your "private" profile with 10 of your enemies standing right behind them. Because the very purpose of "Facebook, MySpace and their ilk" is "to connect with friends and meet new people," the Court concluded that "it would be unrealistic to expect that such disclosures would be considered confidential." Id. at *2. No claim of privilege, therefore, could be made. Id. at *2-3. Even if confidentiality could be reasonably expected, however, the Court went on to say that the slight harm caused by revealing this information "is undoubtedly outweighed by the benefit of correctly disposing of litigation." Id. at *4.

This ruling, and others like it, does not mean that adverse parties have unrestricted access to one another's social networking content. In McCann v. Harleysville Ins. Co. of New York, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010), New York's Appellate Division affirmed a ruling from the trial court that denied access to the plaintiff's Facebook account. Like McMillen, the plaintiff in McCann was an auto-accident victim and sued to recover for her injuries. Id. at 615. Unlike McMillen, however, the defendant specified no basis for the discovery request and instead sought unfettered access to her social networking accounts. After its first Motion to Compel was denied without prejudice as being overly broad, the defendant again sought the information, specifying what information it wanted but not why. Id. Again, the trial court denied the motion, this time with prejudice, and the Appellate Division agreed, saying that the defendant "failed to establish a factual predicate with respect to the relevancy of the evidence" and "essentially sought permission to conduct a 'fishing expedition' into plaintiff's Facebook account." Id. (internal citations omitted). Without any basis for the relevance of the information, and with only a blind hope that the plaintiff's Facebook page would uncover admissible evidence, the Court barred the defendant from taking the discovery. Id.

The opposite occurred in Romano v. Steelcase, Inc., 907 N.Y.2d 650 (N.Y. Sup. Ct. 2010), another personal injury action like those above. There, the defendant sought access to the plaintiff's MySpace and Facebook accounts, as well as their historical and deleted content, on the articulated belief she had placed "certain information on these ... pages which are ... inconsistent with her claims in this action concerning the extent and nature of her injuries." Id. at 651. In making that argument, the defendant pointed to public content on the plaintiff's social networking profiles, which revealed that "she has an active lifestyle" and is "smiling happily in photographs outside of ... her home despite her claim that she has sustained permanent injuries [that have] largely confined [her] to her house and bed." Id. at 653-54. In light of New York's liberal discovery policies, which mirror those contained in the federal rules and in most states', that contradiction led the Court to grant the defendant access to the plaintiff's social networking accounts. Id. at 655; see also Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009) (ordering discovery where the public content of the plaintiffs' social networking profiles contradicted the nature and extent of the injuries they had claimed).

Two other cases shed light on what social media is fairly discoverable without the necessity of a "public content contradiction." In EEOC v. Simply Storage Mgt. LLC, 270 F.R.D. 430 (S.D. Ind. 2010), the EEOC sued on behalf of several plaintiffs for sexual harassment and claimed severe emotional distress. The defendant then sought discovery of the plaintiffs' Facebook and MySpace pages, specifically requesting all photographs, videos, updates, comments and messages during the applicable time frame. Id. at 432. The EEOC objected on numerous grounds, but primarily that the requests were overbroad and irrelevant. Id. at 433. Because the plaintiffs' social communications could have a direct bearing upon their sexual harassment claims (i.e., if they enjoyed going to work or had a friendly, rather than hostile or sexual, relationship with their supervisor), and upon the degree of their emotional harm, the Court ruled that the plaintiffs' social networking profiles were subject to discovery. Id. at 434-35. The scope of that discovery, however, was limited to information that would likely have a relationship to those topics; namely, all content that revealed "any emotion, feeling, or mental state" on behalf of the plaintiffs. Id. 436. That "limited" scope of information, of course, included virtually everything that the defendant had originally requested.

Finally, in Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009), the defendant sought production of the plaintiff's text and Facebook messages related to his alleged "teasing and taunting" of other students, and also sought any other such communications that pertained to the subject matter of his Complaint. Id. at *1. The plaintiff objected on irrelevance grounds, and the parties agreed to a Protective Order, which provided that the plaintiff would produce responsive documents to the defendant that he did not object to, and all others would be submitted to the Court for an in camera review. Id. The Court, after reviewing the unproduced documents, noted no "meaningful distinction" between their content and that of the documents that were produced to the defendant and accordingly relayed that "production should not be limited to Plaintiff's own determination of what may be 'reasonably calculated to lead the discovery of admissible evidence.'" Id. Because "the unproduced portion of the [plaintiff's] Facebook pages revealed a number of communications ... that [were] clearly relevant to this action ... Plaintiff's undifferentiated objection [was] overruled." Id. Having established the necessary relevance of the request, the defendant was entitled to discovery of the plaintiff's Facebook activity.

These cases drive home three primary points about the availability of social networking content in discovery. First, no court has recognized (to date) a legitimate claim of privilege or confidentiality. Indeed, the very purpose of social media is to share information with scores and scores of people, not to conceal it. The expectation that such information is private, therefore, is simply not reasonable and is more accurately grounded "in some theoretical protocol better known as wishful thinking." Romano, 907 N.Y.2d at 657 (internal quotation omitted). Second, "fishing expeditions" will typically not be allowed. This long standing principle of discovery is equally applicable to new forms of online media, and to have a reasonable expectation that the information requested will "lead to the discovery of admissible evidence," something more than a blind hope of uncovering relevant evidence is required. Finally, discovery requests that seek social networking content should connect the information requested to the claims and defenses in the lawsuit. By pointing to a "public content contradiction" on the individual's profile(s), by articulating the inherent connection between social communications and the claims at issue in the case, or by limiting the request only to touch upon relevant topics, a careful litigator can ensure that her efforts in discovery will fall within the proper confines of Rule 26 and the handful of cases that have already grappled with this issue.

B. Issuing a Subpoena to Social Media Websites

The Romano case also addressed another challenge that often arises in social networking cases: the Stored Communications Act, 18 U.S.C § 2701, et seq. The Stored Communications Act was passed as a part of the Electronic Communications Privacy Act in 1986 and prevents an "electronic communication service" from "knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service" without the consent of the person who made the communication. 18 U.S.C. § 2702(a)(1). As established by Crispin v. Audigier, 717 F.Supp.2d 965 (C.D. Cal. 2010), social networking providers - by and large - are considered "electronic communication services" under the SCA given their numerous messaging features and thus may decline to produce their users' communications when their users have not consented to it. Id. at 987-88. In Romano, the Court resolved that problem by ordering the plaintiff to sign consent forms allowing the production of historic and deleted data from her MySpace and Facebook pages. See 907 N.Y.2d at 657. But when the pages belong to a third party and consent cannot be inferred from their involvement in the lawsuit, a different and more difficult set of challenges arise. See, e.g., Barnes v. CUS Nashville, LLC, 2010 WL 2196591, *1 (M.D. Tenn. May 27, 2010) ("[R]egardless of the validity of the subpoena, the SCA prohibits the disclosure" of "certain information from the Facebook account of a nonparty witness.").

There is little authority on how to resolve this problem. The best approach, and one that it appears many parties take, is to reach a consent agreement with the social networking provider and the third party to produce the information, under seal, for review by the judge for relevance. Something similar was done in Barnes v. CUS Nashville, LLC, where Magistrate Judge Bryant actually created a Facebook account for the purpose of reviewing the subpoenaed photographs in camera once the third party witnesses accepted him as a "friend." Thereafter, he agreed to close his account to make sure the photographs would not be released to others. 2010 WL 2265668, *1 (M.D. Tenn. June 3, 2010). As creative as this resolution was, however, it still depended on the third party witnesses' consent, which Magistrate Judge Bryant did not (and apparently could not) order. The need for clever - and cooperative - lawyering here cannot be understated.

III. Conclusion

Social networking is a fact of life and is, without a doubt, having a larger and larger impact on litigation every day. Attorneys and clients alike should be aware that information placed on these websites is hardly different from the everyday communications we have with our friends, families and colleagues and could very well wind up as "Exhibit A" in the next legal action we find ourselves a part of. That is not to say, however, that it is open season for any litigant who asks, but it does mean that relevant requests for social media will be granted.