Earlier this year, Tamara O’Connell on the JGL Blog discussed whether social media evidence is admissible at trial. Today, we consider a related issue: the discoverability of social media evidence in a personal injury claim.
Since the explosion of social media usage, numerous personal injury cases have been sunk by ill-advised social media posts. Instinctively, this makes sense. For example, if your client is claiming that he or she can no longer do a certain activity as a result of the accident at issue and there is evidence in a social media post of your client doing that same activity post-accident, then it stands to reason that the social media post would be discoverable (and likely admissible at trial). In today’s on-line world, there can be little doubt that claims representatives and opposing attorneys use information publically available over the Internet in order to assess your client, your client’s claims, and to look for potential impeachment evidence.
However, what happens once a personal injury claim goes into litigation? Does opposing counsel have the right to propound a discovery request seeking unfettered access to all of your client’s private social media accounts in the hope of finding a nugget of potential impeachment evidence?
While there is no Maryland personal injury case directly on point, and while this is an evolving area of law, courts in several jurisdictions have found that the scope of social media discovery is not unlimited. The United States District Court for the Eastern District of Michigan has summarized the generally prevailing view on the discoverability of social media evidence as follows:
[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with [Fed. R. Civ. P. 26(b)] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in plaintiff's Facebook account[i][ii].
At least one Pennsylvania trial court has held that the threshold may be met “by showing that publicly accessible information posted on the user's Facebook[iii] page controvert or challenges the user's claims or defenses in the pending litigation.”[iv] That said, discovery seeking disclosure of social media evidence should consist of more than a general request for disclosure of the passwords to the claimant’s various social media accounts.[v] Any such request should be objected to and opposed, most likely by way of a motion for protective order. Other information developed in the course of discovery may be used to make the required showing (e.g., deposition testimony indicating that your client posted relevant information to social media).
However, there are several common sense steps that can be taken early on in order to avoid having your client’s personal injury case damaged by social media evidence. From your first contact with a personal injury client, you should urge them, both verbally and in writing, to be extremely judicious in what he or she posts on social media going forward, to elevate the privacy settings on their social media accounts, not to accept “friend requests” from people they do not personally know, to avoid posting photographs and/or video evidence of their activities, and not to comment on the status of their case, the parties, the attorneys, or their state of mind. Simply ceasing all social media activity until the conclusion of the case would be best. However, this advice is not likely to be followed, particularly by younger clients.
Moreover, clients should be counseled that they should not delete any of their accounts and/or delete or alter any of their social media posts in an effort to “clean up” their accounts. As such, clients should consider their past social media postings to be frozen until the end of the case. Failure to preserve relevant social media posts may be considered “spoliation” of evidence, thereby entitling a judge or a jury to infer that any lost and/or destroyed evidence would have been adverse to your client’s case. In most instances, the inference that relevant evidence has been destroyed is more damaging to the case than the actual social media evidence itself.
Further, it should be emphasized that a party’s duty to preserve potentially relevant evidence begins at “the moment [litigation] is reasonably anticipated.”[vi] Parties, and their attorneys, who fail to preserve electronically stored information may subject themselves to potential sanctions[vii]. This too, should be avoided.
[i] Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).
[ii] See also Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012); Fawcett v. Altieri, 960 N.Y.S. 2d 592, 597 (2012) (“Information posted in open on social media accounts are freely discoverable and do not require court orders disclose them. However, this court will not go so far is to hold that all social media records are material and necessary based solely on the fact that many people availed themselves to the social media sites. In order to obtain a closed or private social media account by court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary system subscriber has posted information or photographs that are relevant to the facts of the case at hand”).
[iii] While the cases cited in this post discuss the discoverability of a claimant’s Facebook page, there is no reason to believe that the same rationale would not apply to other forms of social media (Twitter, Instagram, Tumblr, etc.). Of course, this is subject to change as social media services continue to develop.
[iv] Brogan v. Rosenn, Jenkins & Greenwald, LLP, 2013 WL 1742689 at *6 (Pa. Com. Pl. Apr. 22, 2013).
[v] Brogan, 2013 WL 1742689 at * 8 (“A discovery request seeking carte blanche access to private social networking information is overly intrusive, would cause unreasonable embarrassment and burden in contravention of Pa. R. C. P. 4011(b), and is not properly tailored ‘with reasonable particularity’ as required by the Pennsylvania Rules of Civil Procedure. While a limited degree of ‘fishing’ is expected to be expected with certain discovery requests, parties are not permitted to fish with a net rather than with a hook or a harpoon”) (quoting Brownstein v. Philadelphia Transp. Co., 46 Pa. D&C.2d 463, 464 (Phila. Co. 1969); see also Mailhoit, 285 F.R.D. at 570.
[vi] Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521 (D. Md.).