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CHAPTER 9
The Rise of Social Media and Its Role in Litigation

Sarah Marmor and Deirdre Fox

Today, nearly everyone—individuals, employees, corporations, government entities—has a social media presence. Whether through Facebook, LinkedIn, Twitter, Instagram, Pinterest, Flickr, or YouTube, or any other means by which users create online communities to share information, ideas, personal messages, videos and other content, the ways that people and companies can communicate about themselves are ever expanding.¹ This revolution in communication—faster, broader, less mediated, and in many ways more impersonal than ever before—creates enormous opportunities and serious legal risks for organizations.

With social media so commonplace, parties in litigation have discovered and will continue to discover uses for the vast quantities of information that have been casually shared. This chapter focuses on the uses and pitfalls of social media in litigation, ranging from obligations to preserve social media evidence in prelitigation, to informal and formal discovery of such evidence before trial, to effectively using it at trial.²

Roots of Social Media

Precursors to social media trace back to the first e-mail, sent in 1971. In February 1978, the first dial-up computerized bulletin board system (CBBS) was launched, and electronic communication grew in popularity throughout the 1980s. October 1989 saw the birth of America Online, popularizing e-mail to the general public in the United States. And in 1993, students at the University of Illinois created the first graphical web browser, giving rise to what is now called Web 1.0, which enabled users to view websites but not contribute to content.

Soon, however, interaction with websites changed from viewing static web pages to allowing users to provide data and exercise some control over that data, starting with written information. Blogging became popular in the early 2000s. Wikipedia emerged in 2001. LinkedIn and MySpace appeared in 2003. User-created video became vastly easier to share when YouTube went online in 2005. Twitter created a new, instantaneous form of mass communication in 2006. And that same year, Facebook welcomed all users aged 13 and over, allowing users to share many kinds of data: photos, text, and video.

As with almost any innovation, litigation soon followed the rise of social media. The most common claims tied to social media use include defamation, copyright and trademark infringement, and invasion of privacy. Even when lawsuits are not specifically related to social media use, courts and litigants must grapple with this vast trove of potential discovery in claims involving employment discrimination, personal injury, divorce, and unfair competition.

Why, How, and When to Access Data on Social Media in Litigation

The tension between privacy rights and an organization’s rights to protect itself comes into play in informal and formal discovery before and during litigation. Social media postings can be powerful, sometimes crucial, and increasingly collected and proffered as evidence in matters as diverse as criminal cases, employment cases, intellectual property matters, personal injury cases, and family law disputes.³ Indeed, such postings can be significant evidence in any case in which intent, motives, state of mind, or physical or emotional condition are relevant.⁴ But the notion of lawyers wading through the personal, password-protected musings of individuals likely will feel unseemly, at least, to judges—to some more than others. Certainly, lawyers should seek social media information about parties and witnesses only through legitimate channels, such as searching public portions of sites or using the formal discovery process provided by the applicable rules of civil procedure.⁵

Social media law generally vacillates between two poles: protecting the right to privacy and self-expression on the one hand, and mitigating risks to organizations and governments on the other. Both concerns are legitimate. In litigation, witnesses and parties may well feel aggrieved by efforts to obtain access to private social media pages, just as corporate entities may well argue that these sources of discovery are entirely legitimate and necessary. The ability to show that gathering and using another’s social media data as evidence more properly falls on one end of the spectrum between these poles likely will dictate success or failure in obtaining and using it in litigation.

Obligations to Preserve Evidence

Difficulties with social media content as potential evidence begin with the obligation of a party to litigation to preserve relevant evidence and a lawyer’s obligation to advise clients to do so. With social media, the user contributes and controls content that is hosted remotely; that content includes different data types and can be accessed through unique interfaces. Social media sites frequently are updated, and these dynamic and interactive sites may not have a good way to track or store changes. Also, multiple sources of relevant information, such as a corporation’s social media communications, management personnel’s personal social media communications, or other employees’ personal social media communications, may be potentially relevant.

These difficulties and technical challenges do not change a litigant’s duty to preserve relevant evidence, and the failure to do so can lead to legal sanctions, as Gatto v. United Air Lines, Inc., illustrates. In Gatto, a personal injury plaintiff claimed permanent disablement, disability limits on physical and social activities, and an inability to work due to a workplace accident. The court ordered him to execute an authorization for the release of documents and information from his Facebook account, and he agreed to change his password to provide defense counsel access. Defense counsel accessed the account, which revealed comments and photographs (relating to trips and online business activities) that arguably contradicted the plaintiff’s claims and testimony. When the defendant sent the plaintiff’s authorization with a subpoena to Facebook, Facebook objected and recommended that the plaintiff as the account holder download the contents. The plaintiff agreed to do so and to certify that the data was not modified or edited. But the plaintiff deactivated the account, and its content was deleted. After finding that the plaintiff had legal control of his Facebook account because “he had authority to add, delete, or modify his account’s content,” the court sanctioned him for spoliation of evidence. In doing so, the court observed that litigants “have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the court may impose sanctions on an offending party that has breached this duty.”⁶

The lawyer’s ethical duty to advise his client regarding preservation obligations likewise has not changed, and is particularly important where, as here, it can be so easy just to hit the delete button. Information from social media sources should be treated as any other potential source of discovery, and just as with any other relevant evidence, lawyers should counsel their clients to preserve social media information.⁷

Lester v. Allied Concrete Co. provides a dramatic example of the consequences when a lawyer and his client fail to preserve (and in this case, affirmatively destroy) social media evidence.⁸ In Lester, a couple was in a terrible car accident, resulting in the death of the plaintiff’s wife. After bringing a wrongful death action, the plaintiff was counseled by his attorney to remove a Facebook photograph that showed him holding a beer and wearing an “I [Heart] hot moms” T-shirt—an image, arguably, that could undermine the widower’s claims in the case. The plaintiff’s counsel e-mailed him “to ‘clean up’ his Facebook page because ‘we do NOT want blow ups of other pics at trial so please, please clean up your facebook[sic] and myspace[sic]!’”⁹ The plaintiff deleted his page, and then answered a discovery request, “I do not have a Facebook page on the date this is signed.”¹⁰ The defendant moved to compel, and the plaintiff reactivated his Facebook account.¹¹ After the plaintiff went on to testify that he never had deactivated his Facebook page, the defendant issued a subpoena to Facebook to verify that testimony and hired an expert, who determined that 16 pictures had been deleted. These pictures ultimately were produced to the defendant.¹² Although the defendant eventually obtained the desired evidence, the trial court issued a spoliation inference instruction and sanctioned the attorney in the amount of $542,000 and the widower plaintiff in the amount of $180,000.¹³ The Virginia Supreme Court characterized the attorney’s conduct as “patently unethical.”¹⁴ Indeed, published reports indicate the lawyer’s license was suspended and he has ceased practicing law as a result of this case.¹⁵

The Lester case is a strong reminder that every lawyer should include social media preservation on a standard investigation checklist at the outset of litigation. And every lawyer should include social media in a litigation hold letter in anticipation of litigation.

Accessing Social Media

Evidence may be available on publicly viewable social media sites, such as Facebook or LinkedIn, and case investigations should include searches on these public sites.¹⁶ Courts consistently have held that a reasonable expectation of privacy does not accompany publicly available social media content, although periodically, challenges are still made.¹⁷

However, users may have restricted access to the content of their social media sites through privacy settings, and relevant content may not be publicly viewable. While relevant nonpublic content generally may be accessed through formal discovery in litigation, when obtaining content from nonpublic portions of social networking websites, care must be exercised to comply with the law and avoid liability for improper access.

From Whom Is Social Media Discoverable?

Federal and state laws and the ethical obligations of lawyers restrict from whom nonpublic social media evidence can be obtained.

The Stored Communications Act

Organizations, investigators, and lawyers will not want to run afoul of the Stored Communications Act (SCA).¹⁸ Congress passed the SCA in 1986, well before the rise of social media, “because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.”¹⁹ Courts since have held that social media sites, such as Facebook, are electronic communication service (ECS) or remote computing service (RSC) providers, or both, and therefore are within the scope of the SCA’s protections.²⁰ In short, the SCA prohibits providers from divulging the content of private, electronic communications to the government or to private parties.²¹

Critically, the SCA does not make an exception for civil discovery subpoenas.²² Consequently, Facebook has taken the position that the SCA “prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena.”²³ Users of services subject to the SCA generally have standing to seek to quash subpoenas to third-party service providers when the subpoenas seek the users’ electronic communications.²⁴

Not only will subpoenas directed to social media sites likely fail to result in the desired discovery, such subpoenas may result in liability. With certain exceptions, the SCA prescribes criminal penalties and provides a private civil right of action against anyone who “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system. . . .”²⁵ That “anyone” can include the lawyer issuing the subpoena, so caution in this area is crucial.

The SCA expressly allows a service provider to divulge contents of a communication if the service provider has the lawful consent of the originator or recipient of the communication.²⁶ This means that users (account holders) may voluntarily consent to disclose their social media content. Facebook content, for example can be downloaded by logging into a given Facebook account, selecting “account settings,” clicking on a link entitled “download a copy of your Facebook data,” and following the directions on the data download page.²⁷

Of course, the one granting consent must be a “user.” In Konap v. Hawaiian Airlines, Inc., an employee gave certain coworkers authorization to access a secure website, and those coworkers agreed to allow management to access the secure site.²⁸ The court reversed summary judgment for the employer on an employee’s SCA claim, concluding that the coworkers never actually “used” the website and therefore were not “users” within the meaning of the SCA’s exception for consent authorized by a “user” of the service.²⁹

A user’s consent to disclose social media content must be voluntary and care must be taken not to exceed authorized access. Pressuring employees to provide access to private social media sites can violate SCA, as restaurant managers learned in Pietrylo v. Hillstone Rest. Grp.³⁰ In Pietrylo, employees of a chain restaurant set up a private, invitation-only MySpace group that existed to discuss work conditions at the restaurant where they worked. Two managers learned of the page and demanded the password from one of the employees. The managers continued to access the chat room even though they knew the employee had reservations about providing her password. The court found such access was unauthorized and violated the SCA, among other laws.³¹

State Laws Limiting Employer Access to Employee Social Media

Employers investigating employees for employee misconduct, to protect trade secrets, and to prevent workplace violence, in particular, must be mindful of the proliferation of written state laws that restrict asking employees to allow access to the private sections of their social media (outside of formal discovery in litigation).

Significant public attention was brought to bear on employers’ use of social media after reports surfaced about employers asking candidates for passwords to applicant’s Facebook accounts during the hiring process.³² The resulting public outrage led 12 states to pass laws prohibiting employers from asking for or requiring an employee or applicant to disclose a user name or password for a personal social media account: Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, Oregon, Utah, Washington, and New Mexico.³³ More states are likely to follow suit.³⁴

These laws vary in the scope of their restrictions on employers. Across the board, they preclude employers from requiring or requesting employees to disclose usernames and passwords to personal social media accounts. A few statutes stop there.³⁵ Others also ban employers from requiring or requesting employees or prospective employees to add an employee, supervisor, or administrator to contacts associated with his or her social media account.³⁶ Others preclude requiring or requesting an employee or applicant to access personal social media in presence of employer—that is, looming over the employee’s shoulder³⁷—or to change their privacy settings.³⁸ California broadly does not permit employers to require employees or applicants to “divulge any personal social media,” unless a statutory exception applies.³⁹

Many of these laws, to varying degrees, do carve out relatively narrow exception(s) that permit an employer to request or require social media content of an employee to comply with state and federal laws, rules, and regulations or to conduct a legitimate employment investigation to ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct if the employer has reason to believe, based on specific information, that content of an employee’s personal online account or service is implicated or otherwise involved.⁴⁰ For example, New Jersey’s new social media privacy law, which took effect on December 1, 2013, allows an employer, after receiving specific information, to investigate a violation of law, employee misconduct, or the unauthorized transfer of proprietary, confidential, or financial information via an employee’s personal social media account.⁴¹ Notably, these laws generally require the employee’s personal social media account to be involved in the violation under investigation. Such exception(s), while allowing employers to request or require sharing of social media content, still may not allow employers to request or require passwords or to log on to the employee’s account(s).⁴² Importantly, not all such state employment social media privacy statutes expressly make exemptions for employers conducting investigations into workplace misconduct.⁴³ And only Arkansas expressly extends the exception to investigations of violations of employer policies.⁴⁴

Although statutory language varies somewhat from state to state, the statutory restrictions generally do not apply to accounts opened at an employer’s request, or provided or paid for by an employer, or set up on behalf of an employer,⁴⁵ or under some statutes, to accounts or services obtained “by virtue of ” the employment relationship or used for the employer’s “business purpose”—although there is variation in statutory language.⁴⁶ Arkansas’ restrictions do not apply to an account set up to impersonate an employer through use of the employer’s name, logos, or trademarks.⁴⁷ A few states make it clear an employer can view information that is publicly available on the Internet,⁴⁸ although there is no reason to think otherwise. Some specify that an employer is not liable for receiving an employee’s personal social media account username or password through use of an electronic device the employer provided to the employee or a program that monitors the employer’s network, but the employer may not use that information to access the employee’s social media account.⁴⁹

Attorney Ethical Limitations

It is unethical for attorneys, either themselves or through an agent, to use deceptive means to “friend” or cause another to “friend” a person to access social media postings that have a heightened privacy setting. The Philadelphia Bar Association Professional Guidance Committee has issued an advisory opinion, concluding that sending an anonymous friend request to a witness MySpace or Facebook account to gain access to nonpublic information would violate Rule 4.1, which prohibits knowingly “mak[ing] a false statement of material fact or law to a third person . . .” and Rule 8.4(c) of the Rules of Professional Conduct, which provides that it “is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”⁵⁰ The New York City Bar has issued a formal statement opining that a lawyer “may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.”⁵¹ Furthermore, in the case of a represented party, prior consent of counsel is required.⁵²

Discoverability of Relevant Social Media

Once litigation is underway, the most effective way to obtain social media content is through the user of social media him or herself, oftentimes (but not always) a party to the litigation. Courts can and do permit discovery of social media sites, including content to which access is restricted by the user’s privacy settings, from the social media user, but only if the party seeking the information can demonstrate that the social media content is relevant to the claims and defenses in the litigation.

A widely discussed case concerning the right to access social media evidence is EEOC v. The Original Honeybaked Ham Company of Georgia Inc., a sexual harassment suit on behalf of a class of 22 women against a manager at the Honeybaked Ham Company.⁵³ The defendant sought social media evidence and text messages to dispute liability and damages claims, and the district court eventually sanctioned the EEOC for failing to provide social media discovery and for causing unnecessary delays in the eDiscovery process.⁵⁴

Rejecting the EEOC’s strenuous objections that such discovery violated the privacy rights of the plaintiff class members, the magistrate judge described the social media content as akin to a “file folder titled ‘Everything About Me,’ which [class members] have voluntarily shared with others.”

If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to [the] lawsuit, the presumption is that it should be produced. . . . Should the outcome be different because it is on one’s Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.⁵⁵

The court did not fully reject notions of privacy, however. The magistrate judge made the somewhat novel decision to have the social media information provided to a special master—a computer forensic company that was presumably well-versed in data mining in eDiscovery—and also provided that only relevant information would be turned over to the defense after an in-camera review. In November 2012, the magistrate court ordered all claimants to turn over to the special master social media communications and any cell phone used to send or receive text messages during a three-year period for a forensic collection and review, and to provide access to any e-mail account, website, or cloud-based storage location that they used to post communications or pictures.

Commentators have hailed this decision as evidence that the sometimes lopsided burdens of discovery between defendants and plaintiffs are being evened out—at least in employment cases. Indeed, given the burgeoning use of electronic media, and the consequent plethora of digital information to discover, the ability to seek such information in litigation is likely to become a significant aid to defendants in litigation. At least one other court in Pennsylvania has followed the example of Honeybaked Ham.⁵⁶

However, other courts, concerned about the burden on judicial resources, have declined to appoint special masters or engage in such in-camera review. These courts instead rely on plaintiffs’ counsel, in light of counsel’s ethical obligations, to review plaintiffs’ social media for documents response to document requests.⁵⁷ Some courts also have declined to require plaintiffs to provide passwords, relying instead on plaintiffs’ counsel to turn over responsive social media.⁵⁸ Finally, a special master and/or in-camera process increases the expense of litigation, and those costs may well be split or borne by the party seeking the discovery.⁵⁹

As with any other kind of evidence, courts will not allow a party to “conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence,”⁶⁰ and there is no “generalized right to rummage at will through information that Plaintiff has limited from public view.”⁶¹ Overly broad document requests are often denied; therefore requests are more likely to succeed if they are tailored to seek relevant categories of social media evidence.⁶²

Not only must a lawyer ask the right person for social media evidence (the social media user), but the requesting party must demonstrate the relevance of the evidence sought. When social media evidence is sought, the threshold showing of relevance may be heightened by some courts and jurisdictions, in part out of concern over privacy concerns.⁶³ Other courts have rejected applying a heightened threshold to social media discovery, reasoning that it is no different from other forms of discovery.⁶⁴ It is prudent to be familiar with the articulation of the relevance predicate for a particular jurisdiction, court, and judge.

Process of Collecting Social Media Content

As with any other electronically stored information (ESI), planning, documenting and verifying the data collection process and results, which may be supported with affidavits or testimony, is key to withstanding either allegations of spoliation or challenges to later use of the social media content as evidence. The standards, principles, and protocols that have evolved for collection and preservation of ESI are applicable to social media content. However, because of its fluid nature, social media can present particular challenges when applying these standards, principles, and protocols.⁶⁵

The best approach is to confer with opposing counsel and agree to reasonable steps for preservation and collection.⁶⁶ But such consultation may not be possible when the duty to preserve is triggered because the opposing party or counsel may not be identifiable then.⁶⁷

Some court precedent permits the use and introduction of static images—screenshots and pdf images—collected from social media sites, which is economical, as a means of preserving relevant content of sites.⁶⁸ However, capturing social media content by static printing may not be complete and accurate, and may be challenging to authenticate if opposed. Such capture also will not properly collect nonstatic content like video content.

Another possible process—a video or interactive software demonstration of the collection of the content, thereby creating a record of navigating the site—may relay the dynamic information more accurately.⁶⁹ Any collection of the content of social media sites represents the site at the fixed time at which the content was collected; thus, periodic collections may be needed.⁷⁰ Additionally, a collection likely will have been captured without also collecting metadata and logging data that is useful to authenticating the data for uses as evidence and without the benefit of useful data that allows the content to be easily navigated and used.⁷¹

Consequently, tools for preserving and collecting social media content are being developed and rapidly are evolving—at least one eDiscovery software solution now exists that can instantly search and capture social media content in its native format, that is, the format of the social media application used to create and store it. This includes metadata, or “data about data” that is stored electronically and describes the characteristics of the social media content that can assist in establishing the chain of custody and authentication of the content and can facilitate more accurate and efficient data processing and review.⁷² As each social media site is unique, tools used to preserve and collect content from one site may not work for another.⁷³

Using Social Media in Litigation

Of course, social media evidence—like any other evidence—must be relevant, authentic, offered for a non-hearsay purpose or admissible under an exception to the hearsay rule, comply if necessary with the original writing or best evidence rule, and the probative value must outweigh any unfair prejudice. The discussion that follows focuses on authentication and hearsay hurdles because authenticity of social media evidence has presented a significant challenge in a number of cases, with courts reaching widely disparate conclusions depending on the court’s preexisting sense of concern about potential abuse and manipulation of social networking, and because the immediacy and unmediated nature of social media evidence lends itself well to certain hearsay exceptions.⁷⁴

Authenticity Has Presented a Significant but Undeserved Challenge

Courts have been suspicious of the “potential for abuse and manipulation of a social networking account by someone other than its purported creator or user.”⁷⁵ Consequently, the most significant hurdle in using social media evidence in litigation is the authentication required for it to be admitted into evidence. It is worth remembering that inauthentic evidence is irrelevant because “‘evidence cannot have a tendency to make the existence of a disputed fact more or less likely if the evidence is not that which its proponent claims.’”⁷⁶

Concerns about social media—which often are speculative—include hacking, ease of creating fictitious accounts, and the fact that accounts on phones and computers are simply left open and unattended.⁷⁷ Such possibilities have led numerous courts to set a significantly, sometimes impossibly, higher bar for authenticating social media evidence—even absent any evidence of such hacking, fictitious accounts, or unattended computers or devices.⁷⁸ Such courts do not admit social media evidence unless the court definitively determines the evidence is authentic.⁷⁹

Griffin v. State illustrates this “higher bar” approach. In Griffin, the state offered printouts from the MySpace page profile of the girlfriend of a defendant in a murder trial; the printouts included the statement, “Free Boozy [Defendant’s nickname] Just Remember Snitches get stitches U Know who you are.”⁸⁰ In the state’s offer of proof of authenticity, the lead investigator stated that he knew the page was the girlfriend’s page because of a photo of her and Boozy on front, references to Boozy, references to the girlfriend’s children, and her birthdate on the printout.⁸¹ The trial court admitted the printout, and on appeal, the appellate court also found that the state’s circumstantial evidence of authenticity was sufficient.⁸² However, the Court of Appeals reversed, concluding that (i) the picture, birthdate, and location of the girlfriend on the printout were not distinctive enough characteristics, (ii) that anyone could create the site and post photos and content, and (iii) that the account could be hacked or a fictitious account.⁸³ The Court of Appeals required, instead, either that the creator be asked if she created the profile and posts, or a showing that her computer was used to create the profile and to make the posts and that her Internet address and so forth were used to link to the profile.⁸⁴

Unlike Griffin and similar cases, other courts have followed a “conditional relevance” approach to authentication that is consistent with the judge’s and the fact finder’s roles under Rules 104(a) and 104(b) of the Rules of Evidence, consistent with the admissibility standard for whether “the matter in question is what its proponent claims” under Rule 901(a), and consistent with the myriad of illustrative examples for authenticating evidence that are spelled out in Rule 901(b). In such cases, a court asks whether there is sufficient evidence of authenticity for a reasonable jury to conclude the evidence is authentic.⁸⁵ Preliminary determinations of admissibility of evidence are made by the judge under Rule 104(a) and may be made using inadmissible evidence.⁸⁶ If a question of fact must be resolved to determine admissibility, for example, by weighing circumstantial evidence that an account was created and maintained by a particular person and evidence that the account is fictitious, evidence may be conditionally admitted under Rule 104(b), and the trier of fact will resolve the factual issue based on admissible evidence.⁸⁷

Tienda v. State illustrates the “conditional relevance” approach.⁸⁸ The state in Tienda offered MySpace pages from three MySpace accounts that allegedly belonged to the defendant.⁸⁹ Each account stated that it was “created by a ‘Ron Mr. T’” or Tienda’s well-known nickname, “Smiley-Face,” and that the account owner lived in Dallas or D-Town, where Tienda lived.⁹⁰ The accounts were registered to e-mail addresses that included Tienda’s name or nickname.⁹¹ One account included a heading, “RIP [the victim],” above a link to a song played at the victim’s funeral.⁹² The accounts linked to photographs of someone who resembled Tienda. Instant messages between the owner of the account and others included details about the murder in question and said that the account owner was placed on electronic monitoring.⁹³ The sponsoring witness for the pages was the sister of the victim, who had directed the state to them, and a detective testified about typical gang usage of social media.⁹⁴ On the other hand, Tienda elicited testimony about the ease by which a person could create a MySpace page in someone else’s name and send messages purportedly written by that person without their approval.⁹⁵ The Tienda trial court admitted the MySpace pages as evidence, and an intermediate appellate court concluded that the trial court did not err. The Court of Criminal Appeals of Texas agreed: There was “ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to [Tienda] and that he created and maintained them,” and whether the page had been fabricated was an “alternate scenario whose likelihood and weight the jury was entitled to assess.”⁹⁶

Indeed, the standard for whether “the matter in question is what its proponent claims” under Rule 901(a) is “quite low—even lower than a preponderance of the evidence.” In Lorraine v. Markel American Insurance Company, Hon. Judge Paul Grimm noted:

A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. This is not a particularly high barrier to overcome. . . . ‘The question for the court under Rule 901 is whether the proponent of the evidence has ‘offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is. . . .’ The Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.⁹⁷

Because both the “higher bar” and the “conditional relevance” approach continue to coexist, it is prudent to research the positions of a particular jurisdiction, court, and judge; identify potential challenges to admitting the evidence, and have a plan (or more than one plan) for admitting the evidence from the beginning of investigating and developing a case; and to gather and document the collection of social media evidence with such plan(s) for admitting the evidence and using it.

As a practical matter, in many cases, the form of the social media evidence will be printouts or screen shots, and the authentication plan may be as simple and effective as a party admission or a stipulation from the opposing party on the foundation for the authenticity of the print outs or screen shots. A party admission can be obtained at deposition or through Rule 26(f) requests to admit. Production of documents by the opposing party in response to a well-tailored document request raises a presumption of genuineness. The content of social media also could be pleaded in a complaint, and thus potentially admitted in the answer.

Applying Rule 901(a)’s Illustrative Authentication Examples to Social Media

Rule 901(b) of the Rules of Evidence spells out illustrative examples of ways to sufficiently authenticate evidence. Some of these are particularly helpful for authenticating social media.

First, Rule 901(b)(1) allows evidence to be authenticated by testimony of a witness with knowledge “that a matter is what it claims to be.” Circumstantial evidence may be used to infer that a person is the author of social media content. A witness with personal knowledge may testify that she knows the user name on the website of the person in question, that the evidence offered (e.g., printouts) accurately reflects the material on the person’s page, and that some of the content from the page is unique or generally would be known only by the person in question or people closely associated with the person. Also, evidence from the hard drive of the person’s computer may reflect that the user used the particular screen name associated with the postings.

Courts have assessed the authenticity of ESI using the testimony of a witness with “personal knowledge of how that type of exhibit is routinely made who provides ‘factual specificity’ about how the ESI is ‘created, acquired, maintained, and preserved without alteration or change’ or about how it was produced ‘via a system or process that does so.’”⁹⁸ In Dockery v. Dockery, printouts of MySpace e-mails, in which a defendant asked his ex-wife’s friend to ask her to call him, were authenticated by the ex-friend’s testimony about the contents of the conversation between her and the defendant, her testimony that the printouts accurately reflected those conversations, and her testimony that she printed them directly from her computer.⁹⁹ A MySpace representative was not required to authenticate the MySpace e-mails.¹⁰⁰

Second—and oft-used—Rule 901(b)(4) allows evidence to be authenticated by showing distinctive characteristics such as “[a]ppearance, contents, substance, or internal patterns . . . taken in conjunction with [the circumst]ances” to provide a basis for reasonably concluding that the evidence is what it purports to be.” This rule has been a frequent way to authenticate e-mail content through distinctive characteristics in the content of the e-mail itself based on the identifying content of what the e-mail says.¹⁰¹ The same approach can be applied to social media postings and messaging. Distinctive characteristics can include hash values and metadata, in addition to the content of the postings.

Third, Rule 901(b) (6) allows evidence from a telephone conversation to be authenticated by the reply doctrine or “circumstance, including self-identification, [that] shows the person answering to be the one that called,”¹⁰² and identifying through responding to details that indicate he knew what the call recipient was talking about. This can be analogized to social networking conversations.

Fourth, Rule 901(b) (9) allows evidence about a process or system to be authenticated by evidence “showing that it produces an accurate result.”¹⁰³ This will require a witness who has personal knowledge under 602 to explain how the social media evidence was created or an expert qualified under Rule 702 who can provide opinion testimony.

Hearsay and Social Media Evidence

As with authentication, lawyers should have a plan for overcoming hearsay objections to the use of social media as evidence. Hearsay issues are “pervasive when electronically stored and generated evidence is introduced.”¹⁰⁴ Much of the content on social networking sites, however, probably is not hearsay, because it is not offered to prove the truth of the matter asserted—but rather is offered for the fact that it was said or posted—or because the content is posted by a party opponent and excluded from the definition of hearsay under Rule 801(d)(2) of the Rules of Evidence.

The content of social media also could fall within one or many of the exceptions to the hearsay rule. As Hon. Judge Grimm observed in Lorraine, “given the ubiquity of communications in electronic media (e-mail, text messages, chat rooms, Internet postings on servers like ‘MySpace’ or ‘YouTube’ or on blogs, voice mail, etc.), it is not surprising that many statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical) will be communicated in electronic medium. . . .”¹⁰⁵

Rules 803 and 804 provide numerous exceptions for types of hearsay that are admissible because the statement has some degree of inherent trustworthiness. Hearsay exceptions dealing with perceptions, observations, state of mind, and sensation are particularly amenable to social media because of the immediate, interactive nature of social media: present sense impressions (803(1)); excited utterances (803(2)); then existing mental, emotional, or physical condition (803(3)).

First, Rule 803(1) provides an exception for statements that describe an event or condition while personally perceiving it or immediately thereafter. Through Twitter, Facebook, text messaging, and so on, users constantly are telling the world about events as the events occur.

Second, Rule 803(2) provides an exception for statements made under the stress and excitement of a startling event or condition that related to that event or condition—excited utterances. Statements made through Twitter, Facebook, text messaging, and the like, because of their typical immediacy, lend themselves to fitting within this exception. Practitioners should, of course, take care to lay a foundation that particular postings qualify under this exception.

Third, Rule 803(3) provides an exception for a statement of the “[t]hen existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” of the declarant, but not a statement of memory or a belief to prove the fact remembered or believed (unless it related to a will). Rule 803(3) has been used to prove a variety of matters, including why a declarant would not deal with a particular supplier or dealer, motive, competency, lack of intent to defraud, willingness to engage in criminal conduct, confusion or secondary meaning in a trademark infringement case, and so forth.¹⁰⁶

Of course, social media content proffered to prove the truth of a matter asserted, which is not an admission by a party opponent or which does not fall within an exception, will be excluded as inadmissible hearsay.¹⁰⁷

Notes

7. A recent ethics opinion from the New York County Lawyers Association concluded that New York lawyers ethically may counsel civil clients about their use of social media, including how postings might be used for and against them in a civil case; indeed, an attorney’s obligation to competently represent clients could in some circumstances give rise to an obligation (within legal and ethical requirements) to counsel on steps to mitigate adverse effects that a client’s social media use could have on its legal position. (NYCLA Ethics Opinion 745, “Advising a Client Regarding Posts on Social Media Site”, at 3 (July 2, 2013).) There is no ethical restraint on advising use of the highest level of privacy or security setting available, which will prevent direct access by adverse counsel to the contents of social media pages and require adverse counsel to request access through formal discovery channels. Id., 2. New York Rule of Professional Conduct 3.4 prohibits lawyers from suppressing or concealing social media content that should be revealed. Id. While the Opinion goes on to opine that a lawyer in some circumstances may advise what may be “taken down” or removed from a social media site—provided there is no violation of the rules or substantive law pertaining to preservation or spoliation of evidence—the caveat warrants heavy emphasis: Keep in mind that the mere act of deleting social media content, even innocuous or irrelevant content, could appear suspicious, as it apparently did in Gatto to the plaintiff who deactivated his Facebook account.

20. Viacom International Inc. v. YouTube, Inc., 253 F.R.D 256, 264 (S.D.N.Y. 2008) (holding that YouTube is an RCS as it provides video storage services to its users and the SCA protects videos marked as “private”); Pietrylo v. Hillstone Restaurant Group, 2009 U.S. Dist. LEXIS 88702, *10-11 (D.N.J. Sept. 25, 2009) (holding that information on MySpace is protected by the SCA); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 989 (C.D. Cal. 2010) (holding that Facebook, MySpace, and Media Temple are both ESC providers, because they offered message delivery services, and RSC providers, because they offered message storage services, and quashing portions of subpoenas seeking private messages); Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 2013 U.S. Dist. LEXIS 117689, *24 (D.N. J. Aug. 20, 2013) (holding that an employee’s Facebook wall posts, where the user had configured her privacy settings to restrict viewers of her wall postings to “friends,” were protected by the SCA). Social media providers may fall into one or both categories depending on the message: As to the private messaging features of Facebook and MySpace, for unopened messages the entities are ECS providers providing temporary, intermediate storage, and for opened messages retained by the user, the entities are RCS providers providing storage services. Crispin at 988-990. Facebook and MySpace are both ECS and RCS providers as to wall posts and comments, and the SCA prohibits the services from divulging the contents of such wall posts and comments. Id.

21. The SCA prohibits an ECS provider, defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. §2510(15); 18 U.S.C. §2702(a)(1); 18 U.S.C. §2510 (17). That is, it prohibits an ECS provider from divulging the contents of communications that are either in temporary storage, such as messages that are waiting to be delivered, or that are kept for the purposes of backup protection. The SCA also prohibits a RCS provider, defined as “the provision to the public of computer storage or processing services by means of an electronic communications system,” from “knowingly divulg[ing] to any person or entity the contents of any communication that is carried or maintained on that service.” 18 U.S.C. §2711(2); 18 U.S.C. §2702(a)(2). The restrictions on an RCS provider are broader than those on an ECS provider, and are not limited to communications that are in temporary storage or that are kept for purposes of backup protection. Some courts have observed that logs of account usage, mailer header information (minus the subject line), a list of outgoing e-mail addresses sent from an account, and basic subscriber information are all considered to be non-content information. See, e.g., People v. Harris, 36 Misc.3d 868, 871, 949 N.Y.S.2d 590, 596 (Crim. Ct. N.Y. 2012), appeal dismissed, 39 Misc. 868, 949 N.Y.S.2d 590 (N.Y. Sup. App. Term. 2013).

22. Crispin, 717 F. Supp. 2d at 976 (rejecting the argument that the SCA permits the disclosure of the contents of communications pursuant to a civil discovery subpoena); Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008) (observing, “as noted by the courts and commentators alike, that §2702 lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoena or court order”); Viacom, 253 F.R.D. at 264 (S.D.N.Y. 2008) (holding that the SCA “contains no exception for disclosure of such communications pursuant to civil discovery requests”); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 611 (E.D. Va. 2008) (reasoning that “[a]pplying the clear and unambiguous language of §2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”); but see Ledbetter v. Wal-Mart Stores, Inc., 939 N.Y.S.2d 331, *2 (D.Colo. Apr. 21, 2009) (denying plaintiff’s motion for a protective order as to subpoenas issued to Facebook, MySpace, and Meetup.com—but without any discussion of the SCA). There is a key distinction between the government and a private entity: The government in a criminal matter may require an ECS provider to produce information relating to its users. 18 U.S.C. §2703.

23. See “May I Obtain Contents of a User’s Account from Facebook Using a Civil Subpoena?,” available at https://www.facebook.com/help/133221086752707/ (accessed October 19, 2013). Some commentators have noted that while Crispin supports Facebook’s policy that subpoenas to social media sites generally are not enforceable to the extent they seek private user content, the court left the door open on whether subpoenas to social media sites are enforceable to the extent they seek public user content. See, e.g., Carole Levitt J.D., MLS & Mark Rosch, “Serving a Subpoena on a Social Media Site to Obtain Content of a User’s Profile,” available at www.techshow.com/2013/03/serving-a-civil-subpoena-on-a-social-media-site-to-obtain-content-of-a-users-profile (accessed October 19, 2013). In People v. Harris, 949 N.Y.S.2d at 591–592, when Twitter intervened to quash a prosecution subpoena seeking user information, including e-mail addresses and tweets posted from a defendant’s account during a certain time period, the court rejected Twitter’s motion, because Twitter’s terms of service and privacy policy made clear that the subscriber lacked any privacy or property interest in his Twitter account data, and then required Twitter to disclose information about the tweets. Twitter’s appeal was denied in People v. Harris, 39 Misc. 3d 142, 2013 N.Y. Misc. 2039 (N.Y. Sup. App. Term 2013). As a practical matter, however, information most likely sought by subpoena would be private user content, as public user content would be readily accessible and, in fact, may have already been searched for in prelitigation investigation.

25. 18 U.S.C. §2701(a) (prohibiting improper access); 18 U.S.C. §2701(b) (criminal penalties); 18 U.S.C. §2707(a) (private right of action). In 2004, for example, attorneys, who had issued subpoenas lacking time or subject matter limitations to the other parties’ ISP seeking e-mail and who in response had been provided e-mail by the ISP, were sanctioned. Theofel v. Farey-Jones, 359 F.3d 1066, 1073 (9th Cir. 2004). Due to the SCA and the overbreadth of the subpoenas, the Ninth Circuit Court of Appeals found that the attorneys “transparently and egregiously” violated the Federal Rules of Civil Procedure and “acted in bad faith and with gross negligence in drafting and deploying the subpoena.” Civil claims for violating the SCA could be maintained against the attorneys: “The subpoena’s falsity transformed the access from a bona fide state-sanctioned inspection into private snooping.” Id. at 1073.

31. Id.; see also Van Alstyne v. Elec. Scriptorium Ltd., 560 F.3d 199, 204–205 (4th Cir. 2009) (finding that a plaintiff’s manager, who accessed plaintiff’s personal e-mail account without her permission and read her e-mails, violated SCA; the court vacated the jury award of statutory damages under the SCA because the plaintiff failed to show actual damages, but noted that punitive damages are available for SCA violations without actual damages); Gates v. Wheeler, 2010 Minn. App. Unpub. LEXIS 1136, *18–19 (Minn. Ct. App. Nov. 23, 2010) (affirming the issuance of a preliminary injunction that prohibited a party’s use of an opposing party’s private e-mails in litigation: A business co-owner’s use of his access to the company’s e-mail systems to route his opponent co-owner’s e-mail, including all of his co-owner’s personal e-mail sent using his work e-mail account, for use in the litigation violated the co-owner’s reasonable expectation of privacy in his personal e-mails and likely violated the SCA and similar state law); Ehling, 872 F. Supp. 2d at 374 (denying employer’s motion to dismiss where plaintiff’s supervisor gained access to plaintiff’s Facebook account by asking a coworker, who was friends with plaintiff on Facebook, to access the account at a work computer in the supervisor’s presence, and the plaintiff was not Facebook friends with any management employees).

40. See Ark. Code Ann. 124(e) (employee social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies); Cal. Lab. Code §980(e) (social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations); Md. LABOR AND EMPLOYMENT Code Ann. §3-712(e) (investigating to ensure compliance with applicable securities or financial law, or regulatory requirements, based on receipt of information about the use of an employee’s personal website or web-based account or similar account for business purpose or employee’s actions based on the receipt of information about unauthorized downloading of an employer’s proprietary information or financial data to a personal website, web-based account, or similar account by an employee); Col. Rev. Stat. 8-2-127(4)(a) (similar); MCLS §37.275(5) (investigating or requiring an employee to cooperate in an investigation, if there is specific information about activity on the employee’s personal Internet account, to ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct or if the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information, or financial data to an employee’s personal Internet account, or complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications that is established under federal law or by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934); Utah Code Ann. §34-48-2-2(c, e) (similar); Oregon Revised Statutes (ORS)—Chapter 659A (similar); Rev. Code Wash. (ARCW) §49.44.250 (2) (may request or require employee to share content from a personal social networking account to make a factual determination in the course of an investigation undertaken in response to receipt of information about the employee’s activity on that account if the purpose is to ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct or to investigate an allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account, and the employer does not request or require the employee to provide login information).

43. See 2013 Nev. ALS 548 (does not provide express exceptions for investigations). Nevada’s law does provide that the law may not be construed to prevent an employer from complying with other state or federal laws or with any rule of a self-regulatory organization. Id. Illinois, the second state to pass a law prohibiting employers from asking for information about an employee’s, or prospective employee’s, social media account, originally made no exemptions to this law. However, practical concerns about an employer’s right to mitigate its social media risks led to an amendment, effective January 1, 2014. This amendment allows employers to access “professional” social media accounts where the employer has a duty to screen employees or applicants or monitor or retain employee communications under Illinois insurance law, federal law, or the rules of a self-regulatory organization, such as FINRA.

46. See MCLS §37.275(1)(a) (Michigan); Utah Code Ann. §34-48-202(1), §34-48-102(4); Rev. Code Wash. (ARCW) §49.44.250; N.J. Stat. §34:6B-5; Utah Code Ann. §34-48-102(4); see also MCLS §37.275(1)(e) and 820 ILCS 55/10(b)(2) (may monitor, review, or access data stored on an electronic communications device paid for the employer or traveling through or stored on an employer’s network, in accordance with state and federal law); Cal. Lab. Code §980(d) and Md. LABOR AND EMPLOYMENT Code Ann. §3-712(b)(2) (may require or request disclosure of usernames or passwords used to access employer-issued electronic devices); Col. Rev. Stat. 8-2-127(2)(b) and Md. LABOR AND EMPLOYMENT Code Ann. §3-712(b)(2) (may require or request usernames of passwords to nonpersonal accounts or services that provide access to an employer’s internal computer or information systems). New Jersey and Utah specifically limit protections to an account, service, or profile on a social networking website that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer. N.J. Stat. §34:6B-5; Utah Code Ann. §34-48-102(4). Arkansas, Oregon, and Washington immunize an employer from liability for inadvertently receiving an employee’s username, password, or login information through use of an electronic device provided by the employer or a program that monitors an employer’s network, but the employer may not use the information to gain access to an employee’s social media account. Ark. Code. Ann. 11-2-124(b)(2); Or. Rev. Stat. (ORS)—Chapter 659A; Rev. Code Wash. (ARCW) §49.44.250.

51. New York City Bar Formal Opinion 2010-2 (September 2010). The Committee, acknowledging the New York Court of Appeals policy favoring informal discovery as promoting expeditious resolution of disputes, concluded that an attorney or her agent “may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” However, such a request must comport with other ethical obligations: “While there are ethical boundaries to such ‘friending’ . . . they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements,” such as Professional Rule of Conduct 4.2, which prohibits communications with parties, including witnesses, potential witnesses, and others with an interest or right at stake, who are known to be represented by counsel unless the prior consent of the party’s lawyer is obtained or the conduct is authorized by law. Id.

55. EEOC v. The Original Honeybaked Ham Company of Georgia Inc., 116 Fair Empl. Prac. Cas. (BNA) 743, 2012 U.S. Dist. LEXIS 160285, *4–5 (D. Colo. Nov. 7, 2012); see also EEOC v. Simply Storage Management LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010) (noting that privacy settings were not a discovery shield,” [a]lthough privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in litigation,” and that a protective order would address privacy concerns); Romano v. Steelcase, Inc., 30 Misc. 3d 426, 434; 907 N.Y.S.2d 650, 656; 2010 N.Y. Misc. LEXIS 4538, *15 (Sup. Ct. N.Y. 2010) (observing that neither Facebook nor MySpace guarantee complete privacy and plaintiff has no legitimate reasonable expectation of privacy).

57. See Fawcett v. Altieri, 38 Misc. 3d 1022, 1028, 960 N.Y.S.2d 592, 598 (N.Y. Sup. Ct. 2013) (“[Asking courts to review hundreds of transmissions ‘in-camera’ should not be the all purpose solution . . . [c]ourts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim); Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 2013 U.S. Dist. LEXIS 83341, *15–16 (E.D.N.Y. 2013) (seeing no reason to have a third-party provider access and review the plaintiff’s social networking postings when the plaintiff has access to this information herself; it is a reasonable approach for the plaintiff’s counsel to review the plaintiff’s postings for relevance and to make a determination regarding the relevance of the postings, keeping in mind the broad scope of discovery contemplated by Rule 26).

58. Howell v. The Buckeye Ranch, Inc., 2012 U.S. Dist. LEXIS 141368, *3 (S.D. Ohio 2012) (ordering the plaintiff’s counsel to access the plaintiff’s social media accounts and produce responsive information, as opposed to having the plaintiff provide the defendant with her usernames and passwords); Anthony v. Atlantic Gr. Inc., 2012 U.S. Dist. LEXIS 129639, *9–10 (D.S.C. 2012) (directing the plaintiff to access and produce social networking postings directly as opposed to having the defendant seek the information from the service providers, where social networking data, electronically stored information, and electronic mail relating to the employees’ residences or receipt of per diem amounts in wrongful employment termination case were relevant because the requested information related to the employer’s contention that employees had claimed per diem amounts to which they were not entitled); In re Air Crash Near Clarence Ctr, New York, 2011 U.S. Dist. LEXIS 146551 (W.D. N.Y. 2011) (denying a request for consent authorizations subject to renewal if plaintiff’s production was insufficient).

61. Tompkins v. Detroit Metro. Airport, 278 F,R.D. 387, 388-389 (E.D. Mi. 2012) (finding that surveillance footage and the plaintiff’s public Facebook postings of photographs showing the plaintiff holding a small dog and smiling and standing at a birthday party were not inconsistent with the plaintiff’s claim of injury or with the medical information that she had provided as she did not claim she was bedridden or incapable of leaving her house or of participating in modest social activities, and, thus, the footage and public postings did not show relevance of private postings); see also Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, *7,8 (M.D, Tenn. 2013) (finding on a motion to compel in a Title VII action, that absent a threshold relevancy showing from public portions of the plaintiff’s Facebook page of the need for the private information on the plaintiff’s Facebook account, the requests were akin to “fishing expeditions” and not a calculated request that would lead to relevant information); McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 1525, 910 N.Y.S.2d 614, 615 (N.Y. App. Div. 2010) (affirming denial of motion to compel production of photos and authorization for the plaintiff’s Facebook account information because the defendant failed to establish a factual predicate as to the relevancy of the evidence on the Facebook page, essentially seeking permission to conduct a fishing expedition).

62. See Kregg v. Maldonado, 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301, 302 (App. Div. N.Y, Sup. Ct. 2012) (holding that “proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident,” and that disclosure of the “entire contents” of Facebook and MySpace accounts set up by family members of an injured party and Internet postings made on his behalf on those accounts was overbroad and a “fishing expedition”); Keller v. Nat’l Farmers Union Property & Casualty Co., 2013 U.S. Dist. LEXIS 452, *12 (D. Mont. 2013) (denying a motion to compel full printouts from a litany of the plaintiff’s social media sites, subject to reconsideration upon a showing of relevance, as defendant was not entitled to “delve carte blanche into the nonpublic sections” of the plaintiff’s social media accounts); Howell, 2012 U.S. Dist. LEXIS 141368 at *3 (in a sexual harassment action, denying broad access to the plaintiff’s social networking websites, but permitting defendant to serve requests for production of information on those websites tailored to the claims and defenses in the lawsuit); Giacchetto at *14 (requiring the plaintiff to produce any social networking postings that refer or relate to any of the events alleged in the Amended Complaint, but noting the defendant’s discovery request was overbroad in requesting the plaintiff’s username and password, as that would provide access to all information in private sections of social media accounts, relevant and irrelevant alike); Schubart v. Horizon Wind Energy, 2012 U.S. Dist. LEXIS 175063, *5–6 (C.D. Ill. 2012) (request for all social media information related to the sex discrimination plaintiff’s mental state was overly broad; it lacked time limitations and a connection to the events of the case); Mailhoit v. Home Depot USA, Inc., 285 F.R.D. 566, 571 (C.D. Cal. 2013) (holding that the majority of the defendant’s document requests for plaintiff’s social media were not described with sufficient particularity and thus not reasonably calculated to lead to discovery of admissible evidence); Muniz v. United Parcel Service, Inc., 2011 U,.S. Dist. LEXIS 11219, *13 (N.D. Cal. 2011) (quashing a third-party subpoena that sought social media information from the Facebook page of the plaintiff’s counsel that described the “work” or “efforts” of the plaintiff’s counsel and/or case “events” as vague and overbroad and calling for irrelevant information when the only issue in the case was the reasonableness of fees).

64. Giacchetto, 2013 U.S. Dist. LEXIS 83341,*5 n.1 (adopting a “traditional relevance analysis” rather than requiring a threshold evidentiary showing, because taking the approach that the private section of a Facebook account is only discoverable if the party seeking the information can make a “threshold evidentiary showing that the plaintiff’s public Facebook profile contains information that undermines the plaintiff’s claims” can lead to “results that are both too broad and too narrow”: a plaintiff should not be required to turn over the private section Facebook postings that may or may not contain relevant information “merely because the public section undermines the plaintiff’s claims” but “should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section,” and the threshold evidentiary showing “approach improperly shields from discovery the information of Facebook users who do not share any information publicly”).

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