Article Series: Discoverability of Social Media
May 29, 2014
Introduction: SOCIAL MEDIA AS A “DOCUMENT”
In this series of articles we will discuss how to obtain social media information and how to get that information into entered into evidence or how to keep it out.
Federal Rule of Civil Procedure 34(a) regarding the production of documents was first enacted in 1937. Think about that for second—1937. What was the world like in 1937?
In short, 1937 was a long way away from the invention of e-mail, the Internet or the use of social media postings on which are now routinely sought in litigation, as well as voice mails and text messages.
When we think about document production today, our understanding of the universe of documents has to be exceptionally different from how a lawyer practicing in 1937 would have understood the concept. Today, lawyers, clients, and potential litigants all have to think about much more than the world of ink and paper, they have to think about the preservation and collection of electronically stored information (“ESI”)and the evidentiary byproducts of social media / networking.
In 2006, the U.S. Federal Rules of Civil Procedures were amended to codify the requirement to provide ESI as part of routine discovery. ESI includes everything from W word processing documents to spreadsheets to e-mail, text messages and social networking site information. Today, there are more devices connected to the Internet than there are people on Earth. It can come as no surprise then that a Plaintiff or Defendant’s online activities often fall squarely within the scope of discoverable information during civil litigation. Additionally, ESI isn’t just e-mail anymore, with extensive and almost instantaneous mobile access to the Internet, uploads and downloads, status updates, texts, and “tweets,” social media has to be considered part of almost every legal investigation into discoverable evidence. Over 100,000 tweets are sent and over 684,478 pieces of content shared on Facebook every minute of every day. 
This larger view of what constitutes a “document,” is not only required by Rule 34(a), however, it is also now required by state and Federal courts—all of which expect both parties and their counsel to be aware of their legal duties regarding ESI prior to litigation and to be forthcoming with their records during the discovery process, which records might very well include information from “personal” cell phones, e-mail accounts and social networking sites.
PART 1: OBTAINING SOCIAL MEDIA COMMUNICATIONS & THE ETHICAL IMPLICATIONS OF “SELF HELP”
The Ethical Implication of Self Help
Social media evidence can be obtained either within or outside the formal discovery process. Before formal discovery commences, a simple Internet search (Google / Bing) or search of various social media sites can be done to determine if the party or witness in question has a social media presence. It is a relatively common practice for opposing counsel and / or their staff to search for a party or a witness’s Facebook or other social media pages, as well as those their kids, spouse, sisters, bothers, friends. This is an especially popular practice in the worlds of family law, medical malpractice and personal injury / tort defense.
Such “self-help” searches are easy and cost-effective ways of uncovering information. There is nothing per se unethical about conducting a self-help search. However, a lawyer may not practice deception online to gain access to non-public content posted by a party. Normal discovery procedures should be used to seek discovery of posted “private” content.
Pursuant to Rule 4.2 of the Model Rules of Professional Conduct, a lawyer may not become the “friend” of, or “follow” a represented party in order to gain access to their private content, because Rule 4.2 provides that a lawyer may not communicate with a person represented by counsel without first obtaining the consent of the person’s attorney to so do.
Even if the person is not a represented party, under Rules 4.1 and 8.4 a lawyer should not obtain any such information under false pretenses. Specifically, a lawyer may not knowingly make “false statement[s] of material fact or law to a third person” or “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
A lawyer similarly may not cause or induce another person under his direction or control—such as an associate, paralegal, or assistant—to “friend” or otherwise communicate with the party or witness without disclosing the third person’ relationship to the lawyer.
Subpoenas to Social Media Sites
Gathering information from social media sites is not as easy as serving a subpoena on the host site. Under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., social networking sites are prohibited (either voluntarily or pursuant to subpoena or court order) from producing private information created by or about their users or subscribers (with certain express exceptions), 18 U.S.C. §§ 2702(a)(1), 2702(a)(2) (2013).
Pursuant to the SCA, a social networking host is allowed to release a user’s records with “the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service.” 18 U.S.C. § 2702(b)(3). A party may request that a social networking site release its information to him or herself, or to some other enumerated party (e.g., the opponent’s counsel).
Additionally, Facebook’s terms and conditions state that “federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena.”Accordingly, Facebook instructs parties to obtain substantive, content-based information through the formal discovery process and encourages the responding party to produce and authenticate the contents of their accounts by using its “Download Your Information” tool.
If the user (party) refuses to execute a consent form, the requesting party may move to compel execution and seek a court order requiring the user to so do. Specifically, Fed. R. Civ. P. 26(b)(1) states that “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”
Facebook will disclose, however, “basic subscriber information (not content) to a party in a civil matter (which is permitted under the SCA) where the requested information is indispensable to the case, and not within a party’s possession upon personal service of a valid federal, California or California domesticated subpoena and after notice to people affected.”
Discovery Requests / Deposition Questions Aimed at Social Media Information
Interrogatories can be useful to determine if a party opponent maintains any social media profiles and, if so, what screen names (e.g., Twitter “handles”) and passwords are associated with such accounts.
Requests for the production or inspection of documents can be used to require the responding party to grant access to or otherwise print out the requested “screen shots,” pictures, postings, or messages.
During depositions, the requesting party can ask the witness questions concerning his social media activity. Some courts may require this before ordering the production of such information.
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 Media Bistro, “100 Amazing Social Media Statistics, Facts and Figures,” available at http://www.mediabistro.com/alltwitter/100-social-media-stats_ (Jan. 4, 2013).
 John G. Browning, “Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites,” 14 SMU Sci. & Tech. L. Rev. 465, 471
 Facebook, Inc., “May I obtain contents of a user’s account from Facebook using a civil subpoena?,” available at http://www.facebook.com/ help/?ref=pf#!/help/133221086752707/?q=may%20i%20obtain%20contents&sid=0dSZNIKBkqSqfAbH7 (last visited May 10, 2014).
 See also, Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (involving defendant’s motion to compel plaintiff to execute consent form), Mackelprang v. Fid. Nat’l Title Agency of Nevada, Inc., 2007 WL 119149, at *1 (D. Nev., Jan. 9, 2007) (involving motion to compel plaintiff to execute authorization), and Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 657 (N.Y. Sup. Ct. Suffolk Co. 2010) (ordering plaintiff to execute authorization).
 See Mark A. Berman, “Social Media Discovery and ESI in Motion Practice,” New York L J (Jan. 8, 2013).