Insurance companies and their adjusters now regularly seek discovery of social media content in insurance coverage cases. Requests for production of social media content arise in various types of insurance-related litigation, but they are most common in matters resulting from automobile accidents, workers’ compensation and health matters, and property damage claims. In those types of cases, evidence contradicting coverage, or even evidence of potential insurance fraud, may have been unknowingly documented in photographs and other postings by the claimant or “friends” of the claimant. As a result, insurers argue that information on social media sites is relevant and discoverable because the plaintiff insureds in these cases have placed their physical and mental conditions at issue or through claims regarding the condition of property at the time of the alleged loss.
This article provides a general overview of the developing case law on discoverability of social media evidence in civil cases, with a survey of recent cases in which this issue has arisen in the insurance coverage context.
Why Should You Consider Seeking Social Media Data in Discovery?
Regardless of how many times individuals are cautioned not to post statuses, photos, or check-ins at local establishments that may reflect poorly on them or their company, many people still turn to social media profiles to express themselves openly and often in a carefree way. In addition, as discussed more fully below, there is a limited expectation of privacy in information shared on social media sites. During the past few years, courts have generally rejected the idea of a “social network site privilege” and have broadened discovery rules to include relevant social media data, even if technically considered by the poster to be “private.”[4]
Standards and Methods of Accessing Social Media Evidence
Courts have generally treated motions to compel social media information in the same manner as motions seeking other information. As one court noted, “[d]iscovery in this area is nonetheless governed by the same legal principles that guide more traditional forms of discovery and digital ‘fishing expeditions’ are no less objectionable than their analog antecedents.”[5] Or as another court put it, once a party satisfies the relevancy requirement, “the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle.”[6]
Not surprisingly, courts have consistently held that fishing expeditions are not allowed and have required a traditional showing of relevance before ordering broad social media discovery. For example, in Abrams v. Pecile,[7] the plaintiff filed suit seeking damages for a variety of claims, including conversion and intentional infliction of emotional distress arising from the defendant’s alleged unauthorized possession of seminude photos of the plaintiff. During discovery, the defendant sought access to the plaintiff’s social networking accounts, and the trial court ordered the plaintiff to comply.[8] On appeal, the court disagreed and found that the defendant failed to show that permitting access would lead to the discovery of relevant evidence.[9] Many courts agree that the critical factor in determining relevance of private portions of a party’s social media site is whether the public portion of the party’s site contains relevant information.[10]
However, not all courts take such a narrow approach to relevancy. In a recent decision, a Florida appellate court denied a petition for certiorari to quash an order compelling discovery of photographs from the plaintiff’s Facebook site.[11] In Nucci, the plaintiff brought a personal injury claim against Target, arising out of an alleged slip and fall in a Target store. The plaintiff put her physical condition at issue by seeking a variety of damages, including bodily injury, physical and emotional pain and suffering, and lost earnings.[12] Target moved to compel access to photographs on the plaintiff’s Facebook account, noting that just prior to the plaintiff’s deposition, there were 1,285 photos on her private Facebook account; two days after her deposition, that number had dropped to 1,249.[13] The circuit judge ordered production of all photographs posted on the plaintiff’s Facebook account from two years prior to the accident through the present.[14] The plaintiff appealed, claiming that the order compelling production constituted an invasion of her privacy and that Target had failed to establish a basis for the order, but instead had requested the photographs on “the mere hope” that the discovery would yield relevant evidence.[15] In affirming the circuit court, the appellate court first found that photographs of the plaintiff prior to the accident are the “equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality” and, therefore, are “powerfully relevant” to the damage issues in the lawsuit.[16] Second, the court held that “photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy setting that the user may have established.”[17]
Assuming a party is able to meet its burden to establish the relevancy of social media content, the next consideration becomes how to obtain the sought-after information. This is often where things can get tricky. A variety of methods have been used by litigants and ordered by courts, and these are summarized in detail below.
Direct access to social media accounts via court order. One of the most intrusive methods of discovery is to permit the requesting party access to a user’s entire social media account. This would be analogous to allowing access to someone’s entire office when one file might be relevant. As you might imagine, this has been the least popular method with parties and the courts.
Nonetheless, there are several decisions in which a court has ordered a party to produce his or her log-in and password information to the opposing party in response to a discovery request.[18] A Pennsylvania court’s decision in Largent v. Reed[19] demonstrates some of the challenges that can arise. In Largent, the court ordered the plaintiff to turn over her Facebook log-in information to defense counsel within 14 days of the date of the court order.[20] Defense counsel then would have 21 days to “inspect [the plaintiff’s] profile.”[21] After that time, the plaintiff could change her password to prevent further access to her account.[22] Although the order identified the defendant’s lawyer as the only individual who would be given the information, the order did not clarify whether the defendant was allowed to view the account once defense counsel had logged in.[23]
Some courts have been reluctant to allow unfettered access to a party’s social media account. In Trail v. Lesko,[24] the plaintiff was injured while he was a passenger in a car the defendant was driving.[25] The plaintiff sustained serious injuries, and, originally, the defendant denied that he was the driver.[26] During discovery, the plaintiff moved for disclosure of the defendant’s Facebook page in order to discover information that would prove he was the driver.[27] Later, the defendant admitted that he was the driver and also admitted liability. The defendant also moved to disclose the plaintiff’s Facebook page and attached two photographs obtained from the plaintiff’s public Facebook page showing Trail “at a bar socializing” and “drinking at a party.”[28] Because Trail did not claim he was bedridden or unable to leave his home, the court found that the photographs were not inconsistent with his injuries.[29] The court denied both the defendant’s and the plaintiff’s motions to compel discovery because the intrusions were not offset by a showing that the discovery would assist the requesting party in formulating claims or defenses.[30] The defendant had already admitted liability, and there was no argument made by the plaintiff that the defendant’s Facebook page would provide evidence of damages.[31] The court stated that a party is not entitled to free-rein access to the private portions of social media websites of an opposing party merely because the party asks the court for it.[32] “To enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and [] cause embarrassment if viewed by persons who are not ‘Friends.’”[33]
Direct access to social media accounts via party consent. Another way to obtain relevant social media evidence is to seek consent from the party with relevant data. A consent agreement for social media documents can be reached the same way any consent agreement between parties can be reached.[34] Although there is no one way to draft an agreement, it should contain (1) background information (i.e., username, password, email), (2) document requests (e.g., wall posts, emails, photos, friend lists), and (3) indemnity (Facebook, Twitter, and other social media sites generally require that a party agree to indemnity before they will produce records).[35] However, agreements between litigants can still present problematic situations.
One such example is Gatto v. United Airlines,[36] in which the plaintiff voluntarily provided his Facebook password to opposing counsel during a settlement conference.[37] When the defendant’s attorney later logged into the account and printed select portions of the plaintiff’s profile as was agreed, Facebook sent an automatic message to the plaintiff alerting him that his account had been accessed from an unauthorized ISP address.[38] The plaintiff attempted to deactivate the account but deleted it instead.[39] The data associated with the account were automatically and permanently deleted two weeks later.[40] The court found that the plaintiff had failed to properly preserve relevant evidence and granted the defendant’s request for an adverse-interference instruction.[41] It is important to work out all of these issues when reaching a consent agreement to ensure neither side runs into these problems.
Access to social media accounts via the service provider and the Stored Communications Act. Parties can attempt to obtain relevant social media evidence by requesting it directly from the social media service provider.[42] However, subpoenaing information directly from sites like Facebook or Twitter can be challenging.[43] First, social media providers may fight the subpoena to protect the privacy interests of their users.[44] In addition, federal law makes it more difficult for providers to hand over communications.[45] Almost all social media service providers will require a subpoena, court order, or other legal document to disclose user information in a civil case.[46]
Courts and service providers must also consider the Stored Communications Act (SCA) in these cases. The act was passed by Congress in 1986 as part of the Electronic Communications Privacy Act.[47] The SCA generally prevents providers of communication services from disclosing private communications to certain entities and individuals. The SCA divides Internet service providers into two categories: electronic communications services (ECSs) and remote computing services (RCSs). An ECS is “any service which provides to users thereof the ability to send or receive wire or electronic communications.”[48] An RCS provides long-term processing or storage.[49] While the SCA was enacted long before social media services existed, courts have applied the SCA to limit or prohibit discovery of social media content.
In Crispin v. Christian Audigier,[50] a federal court in the Central District of California quashed subpoenas to Myspace and Facebook on the grounds that some of the content on those sites is protected by the SCA. The plaintiff, an artist, alleged that the defendants used his artwork in violation of an oral agreement and alleged copyright infringement.[51] The court held that private messaging services are an ECS and that social media sites can be both ECS and RCS providers based on the part of the site at issue.[52] The site would be an RCS provider as to wall postings and comments posted on an account.[53] In effect, the court held that inherently private portions of social networking sites are not subject to subpoena under the SCA. The decision has been strongly criticized as applying outdated law to new technology.[54]
Because it is difficult to subpoena social media sites directly, counsel are more likely to be successful in obtaining consent from a party through negotiation with opposing counsel or a court-ordered consent.[55] In Glazer v. Fireman’s Fund Insurance Co.,[56] an employment discrimination action, defendant Fireman’s Fund served a subpoena on LivePerson, a website that provides a platform for live, online advice and consulting services.[57] Fireman’s Fund requested that LivePerson produce communications with the plaintiff, which discussed the plaintiff’s work performance, relationships with coworkers, views regarding her treatment by Fireman’s Fund, etc.[58] LivePerson objected to the subpoena on multiple grounds, including that the information sought by Fireman’s Fund was protected from disclosure under the SCA.[59] The court ultimately decided it need not determine whether the SCA applied because if it determined that the plaintiff’s communications with LivePerson were relevant, it could simply direct the plaintiff to allow disclosure.[60]
Access to social media discovery via court-ordered consent. If parties cannot come to a voluntary agreement regarding social media discovery, courts will likely consider ordering the disclosure of relevant social media evidence. In Romano v. Steelcase,[61] the defendant sought a court order granting access to the plaintiff’s current and past social media pages and accounts, including all deleted pages and posts that the defendant believed to be inconsistent with the plaintiff’s personal injury claims. The court granted the defendant access to the plaintiff’s social media data because “[t]he information sought by Defendant regarding Plaintiff’s Facebook and Myspace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence,” and “Defendant’s need for access to the information outweighs any privacy concerns that may be voiced by Plaintiff.”[62] The defendant ultimately relied on the plaintiff’s Facebook photos to refute claims that her injuries limited her ability to leave her home.
A court similarly found social media evidence discoverable in a case in which emotional or mental state was at issue. In EEOC v. Simply Storage Management, LLC,[63] a sexual harassment case involving claims of extreme emotional distress, the court allowed discovery of the claimants’ Facebook and Myspace “profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and [social network] applications [for the relevant period] that reveal, refer, or relate to any emotion of mental state,” or communications that “could reasonably be expected to produce a significant emotion, feeling, or mental state.” The court ordered the release of the communications regardless of whether the communications were designated as “private.”
It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.[64]
A number of courts have found that a party has sufficiently shown that information contained on a social media site may contain relevant content to the claims. However, many courts have stated that “discovery statutes do not allow the contents of [social media] accounts to be treated differently from the rules applied to any other discovery material. . . .”[65] In Patterson v. Turner Construction Co.,[66] the plaintiff claimed damages for physical and psychological injuries, including the inability to work. The court found that social media postings on the plaintiff’s Facebook account, if relevant, were “not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as a relevant matter from a personal diary is discoverable.”[67]
Courts have not always sided with parties requesting access to social media data. In Potts v. Dollar Tree Stores,[68] the plaintiff sought damages for harassment and discrimination based on the plaintiff’s race and a hostile work environment. The defendant filed a motion to compel the production of Facebook and any other social media data.[69] The court found that the defendant lacked “any evidentiary showing that Plaintiff’s public Facebook profile contains information that will lead to the discovery of admissible evidence.”[70] A general assertion that there might be relevant evidence on a social media account may not be enough for the court to compel discovery responses.
In camera review. As discussed above, many courts are concerned about broad access to a party’s social media accounts by an opposing party. In an effort to combat this issue, some courts have conducted an in camera review before the production of any information. In Offenback v. Bowman,[71] the plaintiff requested discovery from the plaintiff’s social media accounts related to claims that the plaintiff’s injuries resulted in decreased sociability and lack of intimacy and that plaintiff could not work. The magistrate judge conducted an in camera review of the plaintiff’s Facebook account and ordered the production of a “small segment” of the content as relevant to the plaintiff’s physical condition.[72] Similarly, in Douglas v. Riverwalk Grill, LLC,[73] the court conducted an in camera review of the plaintiff’s social media accounts. After reviewing “literally thousands of entries,” the court found that the “majority of the issues bear absolutely no relevance” to the case.[74] The court held that the only entries that would be considered discoverable were those written by the plaintiff in the form of “comments” he made on others’ posts or updates to his own “status.”[75] The court designated the specific entries that it determined were discoverable in the case.[76] In Barnes v. CUS Nashville, LLC,[77] the trial judge actually offered to create his own Facebook account and invite two nonparties to “friend” him so that he could view private content on their sites to determine whether the content was discoverable.
Not all courts have been interested in combing through the contents of parties’ social media accounts. In Tompkins v. Detroit Metropolitan Airport,[78] the court rejected the parties’ suggestion that it conduct an in camera review of the content, explaining that “such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance.” The court in Ledbetter v. Wal-Mart Stores, Inc. similarly declined to grant the plaintiff’s request for an in camera review of the plaintiff’s Facebook and Myspace accounts.[79]
Finally, in Holter v. Wells Fargo and Co., the court ordered the plaintiff’s counsel to review the plaintiff’s private social media accounts, identify any relevant material, and produce it to the defendant’s counsel in discovery.[80] The court found that information on the plaintiff’s social media site was potentially relevant to her liability and damage claims, but the court declined to allow Wells Fargo to have unfettered access to those accounts. “Just as the Court would not give defendant the ability to come into plaintiff’s home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant.”[81]
Discovery of Social Media Content in Insurance Coverage Cases
The following is a survey of selected recent decisions involving discovery of social media content in insurance coverage actions.
Decisions granting discovery of social media content. In Beye v. Horizon Blue Cross Blue Shield of New Jersey,[82] the plaintiffs were parents suing on behalf of their minor children who had been denied coverage or received reduced health care coverage for treatment of eating disorders. Defendant Horizon Blue Cross Blue Shield sought discovery concerning the plaintiffs’ eating disorders and related health conditions, including production of emails, journals, diaries, and communications, such as entries on websites like Facebook or Myspace.[83] The plaintiffs opposed discovery on the grounds that disclosure would be harmful to the parties’ health and place them at risk for relapse.[84] They further argued that the contents of postings on social media sites were not relevant to whether or not the insurer breached the policy as the insurer did not dispute that the beneficiaries suffer from eating disorders and that Horizon could obtain information regarding the parties’ physical condition and systems from their parents and health care professions who are treating them.[85] The court limited Horizon’s discovery requests but, based on what it viewed as a diminished expectation of privacy for posted information, ordered production of “entries on webpages such as ‘Myspace’ or ‘Facebook’ that the beneficiaries [minor children with eating disorders] shared with others. The privacy concerns are far less where the beneficiary herself chose to disclose the information.”[86]
Davenport v. State Farm Mutual Automobile Insurance Co.[87] Plaintiff Caroline Davenport sought uninsured motorist coverage from State Farm for injuries she incurred during an automobile accident. State Farm served written discovery requests, seeking all photographs posted by the plaintiff on her social networking sites and photographs posted by others where plaintiff was tagged or otherwise identified.[88] State Farm also sought production of all computers, cell phones, laptops, smart phones, and similar electronic devices used by, owned by, or in any way accessible to the plaintiff to gain access to social media sites.[89] The plaintiff objected to the discovery on the basis that it was not reasonably calculated to lead to the discovery of admissible evidence, was overly broad, and to the extent that it would improperly invade the plaintiff’s privacy.[90] The court granted in part and denied in part the motion, and required the plaintiff to produce all photographs that depict the plaintiff and that have been added to any social networking site since the date of the accident, regardless of who posted the photograph. The court noted that while social networking content is neither privileged nor protected by any right of privacy, discovery requests must nevertheless be tailored to seek information that is reasonably calculated to lead to the discovery of admissible evidence to prevent a party from engaging in a “proverbial fishing expedition.”[91] The court found that State Farm’s discovery requests seeking production of “every photograph” added since the date of the accident were overly broad, but the court required production of all photographs depicting the plaintiff, whether posted by her or by others, in which she was “tagged.”[92] The court also denied State Farm’s request for access to the plaintiff’s laptop and other electronic devices as overly broad, finding that State Farm did not have a “generalized right to rummage at will through information that Plaintiff has limited from public view.”[93]
Decisions denying discovery of social media content. In McCann v. Harleysville Insurance Co. of New York,[94] Harleysville requested access to plaintiff Kara McCann’s Facebook account to search for evidence regarding whether she had sustained a serious injury as the result of an automobile accident. In moving to compel discovery, Harleysville could not cite any information on the public portions of McCann’s Facebook page that arguably contradicted her claims. The appellate court therefore affirmed the trial judge’s denial of the discovery motion, finding that Harleysville “essentially sought permission to conduct a ‘fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.”[95] However, the appellate court reversed the trial judge’s entry of a protective order in favor of McCann, finding Harleysville was not barred from seeking access to the plaintiff’s Facebook page in the future if circumstances warranted that discovery.[96]
Keller v. National Farmers Union Property & Casualty Co.[97] Plaintiffs Jennifer and Gloria Keller sought coverage from National Farmers Union (NFU) under an automobile policy for unpaid medical expenses and uninsured motorist benefits. Jennifer Keller had been injured in an automobile accident and claimed injuries to her head, neck, and back. NFU sought production of all of the plaintiffs’ social media website pages and all photographs posted thereon from the date of the accident to the present. The plaintiffs objected on the grounds that the requests sought irrelevant information, were overbroad, and constituted harassment.[98] In moving to compel production, NFU argued that the social media site information was discoverable because the plaintiffs had put Jennifer Keller’s physical condition at issue by alleging “a host of physical and emotional injuries” and that information on the social networking sites might undermine or contradict those allegations.[99] After noting that content of social networking sites is not protected from discovery merely because a party deems the content private,[100] the court held that a party seeking discovery of social networking information must make a threshold showing that publicly available information on those sites undermines the non-movant’s claims.[101] The court found that NFU failed to come forward with any evidence that the public content of the plaintiffs’ postings undermined their coverage claims, and that “[a]bsent such a showing, NFU is not entitled to delve carte blanche into non-public sections of Plaintiffs’ social networking accounts.”[102]
Brogan v. Rosenn, Jenkins & Greenwald, LLP.[103] Plaintiffs Thomas and Wendy Brogan brought claims against their legal counsel and abstracting and title insurance companies for damages arising from an alleged failure to identify a recorded easement prior to the plaintiffs’ purchase of real property.[104] Defendant Conestoga Title Insurance Company denied that the plaintiffs had asserted a valid title defect claim.[105] The plaintiffs moved to compel access to the Facebook log-in name, user name, and password for a paralegal in Conestoga’s claims department.[106] The plaintiffs had learned during a deposition of a former Conestoga employee that he had communicated via Facebook with the paralegal regarding his deposition subpoena, and the paralegal had recommended that he contact Conestoga’s counsel to discuss the title insurance claim in advance of his deposition.[107] Conestoga produced four Facebook messages exchanged between the paralegal and the former Conestoga employee relative to his deposition, but Conestoga refused to provide the plaintiffs with access to her Facebook account user name and password.[108] The plaintiffs argued that they were entitled to full access to the paralegal’s Facebook account because of “irreconcilably inconsistent” deposition testimony by the paralegal and former Conestoga employee.[109] Conestoga objected on the grounds that the discovery request was overly broad and that it sought information that was protected by a general right of privacy. The court rejected any right of privacy and found that social media content is discoverable where the moving party makes a “threshold showing of relevance by articulating some facts, gleaned from the publicly available portions of the user’s social networking account, which suggest that pertinent information may be contained on the non-public portions of the member’s account.”[110] The court denied the plaintiffs’ motion, finding that the threshold showing had not been made. “While a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted to ‘fish with a net rather than a hook or a harpoon.’”[111]
Progressive Insurance Co. v. Herschberg.[112] Progressive Insurance Company brought a petition to stay arbitration proceedings by its insured, Marc Herschberg, arising out of uninsured motorist benefit claims. Herschberg sought coverage from Progressive for knee injuries resulting from a motor vehicle accident, claiming that he was “unable to work, had difficulty walking, and was unable to lift heavy objects, run, ski, dance or walk up stairs.”[113] Progressive denied coverage, claiming that Herschberg testified falsely regarding his alleged physical disabilities.[114] Progressive cited photographs posted by Herschberg on public portions of his Facebook page after the accident—depicting Herschberg engaged in a variety of activities, including standing on top of a pool slide, climbing the ladder to the pool slide, bending over a boat trailer—which were posted in an album entitled “Another Day of Play. . . . I gotta get a job!”[115] As a result of this evidence, Progressive sought unlimited access to Herschberg’s Facebook account. The court denied without prejudice Progressive’s request, finding that the demand was “overly broad, and there is no showing that the material sought is necessary and not cumulative.”[116]
Chauvin v. State Farm Mutual Automobile Insurance Co.[117] Plaintiff Kathleen Chauvin was involved in an automobile accident and sought to recover benefits from State Farm under Michigan’s “no fault” statute. State Farm sought production of the plaintiff’s email address and password for Facebook; all Facebook account information for the plaintiff, including photographs, messages, status posts, wall posts, etc.; and the names, addresses, and telephone numbers of all of the plaintiff’s friends on Facebook. The magistrate judge denied State Farm’s motion, finding that the Facebook information was irrelevant to the claim, particularly because State Farm had denied coverage on the basis that the plaintiff’s current medical condition was unrelated to the accident. The magistrate also found that any information that State Farm could obtain through the plaintiff’s Facebook account could also be obtained through other means. The magistrate judge concluded that allowing State Farm unfettered access to the plaintiff’s Facebook account and “friends” would amount to “a fishing expedition at best and harassment at worst.” The trial judge affirmed the magistrate’s order.[118] The trial judge also affirmed the magistrate’s award of costs against State Farm, finding that the magistrate judge had not abused her discretion, even though some courts have allowed discovery of the same type of social media information in other cases.[119]
Wright v. Yankee Point Marina, Inc. & Seabright Insurance Co.[120] Plaintiff Cynthia Wright sought benefits from her employer and its workers’ compensation carrier for injuries allegedly sustained to her knee as a result of a fall at work. Wright’s physical condition was at issue due to her claim for lifetime medical benefits and temporary total disability benefits.[121] The defendants sought discovery from Wright of “all photographs or videos posted by the claimant, ‘tagging’ or depicting the claimant, or anyone else on her behalf on Facebook, Myspace, or any other social networking site from the time period beginning September 1, 2010 to the present and continuing.”[122] The defendants also sought a complete Facebook archive and electronic copies of Wright’s profiles on Facebook and Myspace during the period in question.[123] Wright objected on the grounds that she had a right of privacy for communications contained on a site that she had restricted from public viewing, and on the grounds that the requests were overreaching, overbroad, invasive, and not reasonably calculated to lead to the discovery of admissible evidence.[124] The defendants countered that the requested social media content was relevant to establishing the claimant’s post-accident activities and, as a result, her lack of physical disability.[125] On appeal from an earlier ruling granting the discovery, the full commission reversed that decision, finding that deciding the request required a balancing of the conflicting interests of the claimant’s privacy with the defendants’ right to discovery regarding the matter at issue.
Before compelling access to a claimant’s private social media site, the defendant should provide credible information to show that the content of the site is of sufficient materiality to overcome the claimant’s reasonable expectation of privacy. While not finding that one rule can be allowed to all cases, we agree that the mere potential that admissible evidence will be uncovered is insufficient to justify the release of all personal content that will necessarily be disclosed by responding to the discovery.[126]
The commission characterized the defendants’ discovery requests for social media information as “untargeted, over broad, and violative of the claimant’s expectation of privacy.”[127] Finally, the commission determined that it would not conduct an in camera review of material from Wright’s social media sites as it had “neither the time nor the staff to wade through reams of documentation. . . .”[128]
Ethical Considerations When Dealing with Social Media
Attorneys may access and view any public portions of social media profiles and accounts of an adverse party.[129] However, “friending” or requesting to follow a represented adverse party is likely to violate applicable Rules of Professional Responsibility. Many ethics authorities have begun to address this issue. In addition, general rules, such as those addressing communications with represented parties, can come into effect in this context. For example, in Minnesota, “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”[130] Many other states have similar rules. Although this rule does not specifically mention social media, it can most certainly be applied in a scenario involving an attempt to obtain information from an adverse party online. Lawyers must still keep in mind all of the regular professional rules before seeking information from a party online.
It is less clear what the ethical implications are of “friending” or requesting to follow an unrepresented party. It is important to check state rules and state bar ethical opinions to determine the best course of action. The New York City Bar, for example, has stated that an attorney may engage in truthful, non-deceptive “friending” of unrepresented persons. The New York City Bar approves of this approach as long as the lawyer does not do things such as create “a fraudulent profile that falsely portrays the lawyer or agent as a long-lost classmate, a prospective employer or friend of a friend.”[131] The lawyer must disclose his or her real name. The Philadelphia Bar Association has taken a different approach, declaring that an attorney may not “friend” an unrepresented person whom the other side intends to call as a witness, without revealing that the lawyer is seeking information that could be used against the witness.[132] Opinions like these often make references to general rules of professional conduct and apply them in the social media context.
Lawyers must also be aware of issues related to preservation of social media evidence. In Lester v. Allied Concrete Co., a Virginia trial court reduced a $6.2 million loss of consortium award to a plaintiff in a wrongful death action to $2.1 million, sanctioned the plaintiff’s attorney in the amount of $544,000, and sanctioned the plaintiff in the amount of $178,000 because the plaintiff’s counsel advised the plaintiff to delete social media posts.[133] The case involved the death of the plaintiff’s wife. A photo showed the plaintiff holding a beer can and wearing a shirt saying “I ♥ Hot Moms.” The Virginia Supreme Court reversed the remittitur, but the sanctions award was upheld.[134] The lawyer later consented to a five-year suspension of his license to practice law.[135]
Conclusion
Social media sites such as Facebook and Twitter have become the dominant mode of communication in the 21st century. These sites can offer a treasure trove of valuable information, and mining that information is fast becoming a critical element of discovery in a wide variety of criminal and civil actions, including insurance claim adjustment and coverage litigation.
While the technology may be cutting edge, discovery of social media information is subject to the same requirements as any other evidence. The party seeking the information must show that the requests are reasonably calculated to lead to the discovery of admissible evidence and that no recognized privilege or protection applies. The right of privacy will continue to be at the center of discovery disputes regarding social media information; however, most courts have held that any minimal privacy interest is outweighed by the need to obtain the information.
Social media information is subject to the same rules governing preservation of potentially relevant information as any other evidence. Social media information should therefore be expressly addressed in litigation hold letters, and counsel must take all reasonable steps with their clients to prevent spoliation of potentially relevant, electronically stored information. Failure to do so may subject both counsel and their clients to potential monetary and other sanctions.
Finally, many jurisdictions have either developed or are in the process of developing ethical rules regarding social media use. Counsel must therefore be diligent in complying with these ethical rules, including avoiding ex parte communications with represented parties or engaging in potentially deceptive social media communications with nonparties, through “friending” or other means.
Keywords: litigation, insurance coverage, social media, evidence, discovery, privacy, fishing expedition, relevance
Rick E. Kubler is with Gray Plant Mooty in Minneapolis. The author would like to recognize former Gray Plant Mooty associate Holly Miller for her significant contribution to this article.
[1] Maeve Duggan et al., Social Media Update 2014 (Pew Research Ctr. Jan. 9, 2015).
[2] Duggan, supra note 1, at 2.
[3] Duggan, supra note 1, at 2.
[4] See, e.g., Moreno v. Hartford Sentinel, 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009) (where a party posts information on a public portion of a social media site, there is no expectation of privacy); McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Jefferson Cnty. Pa. Ct. Com. Pl. Sept. 9, 2010).
[5] Winchell v. Lopiccolo, 38 Misc. 3d 458, 461 (N.Y. Sup. Ct. 2012) (internal citations omitted).
[6] Brogan v. Rosenn, Jenkins & Greenwald, LLP, 28 Pa. D. & C.5th 553, 570 (Lackawanna Cnty. Pa. Ct. Com. Pl. Apr. 22, 2013).
[7] 83 A.D.3d 527 (N.Y. App. Div. 2011).
[8] Abrams, 83 A.D.3d 527.
[9] Abrams, 83 A.D.3d 527.
[10] See 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) (requiring movant to establish a “factual predicate” based on public portions of plaintiff’s Facebook account in order to obtain discovery of private portions of the account).
[11] Nucci, v. Target Corp., 162 So. 3d 146 (Fla. 4th Dist. Ct. App. 2015).
[12] Nucci, 162 So. 3d at 148.
[13] Nucci, 162 So. 3d at 148.
[14] Nucci, 162 So. 3d at 149.
[15] Nucci, 162 So. 3d at 150.
[16] Nucci, 162 So. 3d at 152.
[17] Nucci, 162 So. 3d at 153-54.
[18] See, e.g., Zimmerman v. Weis Mkts., Inc., No. CV-09-1535, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Northumberland Cnty. Pa. Ct. Com. Pl. May 19, 2011) (ordering plaintiff “to provide all passwords, user names and log-in names for any and all Myspace and Facebook accounts to Defendant within twenty days” of the order).
[19] No. 2009-1823, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612 (Franklin Cnty. Pa. Ct. Com. Pl. Nov. 8, 2011).
[20] Largent, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612.
[21] Largent, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612.
[22] Largent, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612.
[23] Largent, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612.
[24] No. GD-10-017249, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194 (Allegheny Cnty. Pa. Ct. Com. Pl. July 3, 2012).
[25] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[26] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[27] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[28] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[29] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[30] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[31] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[32] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[33] Trail, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194.
[34] Joshua Briones & Ana Tagvoryan, Social Media as Evidence 40 (2013).
[35] Briones & Tagvoryan, supra note 34, at 40.
[36] No. 10-cv-1090, 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013).
[37] Gatto, 2013 U.S. Dist. LEXIS 41909, at *4.
[38] Gatto, 2013 U.S. Dist. LEXIS 41909, at *5.
[39] Gatto, 2013 U.S. Dist. LEXIS 41909, at *6-7.
[40] Gatto, 2013 U.S. Dist. LEXIS 41909, at *6-7.
[41] Gatto, 2013 U.S. Dist. LEXIS 41909, at *13-15.
[42] Briones & Tagvoryan, supra note 34, at 35.
[43] Briones & Tagvoryan, supra note 34, at 35.
[44] Briones & Tagvoryan, supra note 34, at 36.
[45] Briones & Tagvoryan, supra note 34, at 36.
[46] Briones & Tagvoryan, supra note 34, at 36.
[47] Pub. L. No. 99-508, 100 Stat. 1848 (1986).
[48] 18 U.S.C. § 2510 (2012).
[49] 18 U.S.C. § 2711 (2012).
[50] 717 F. Supp. 2d 965 (C.D. Cal. 2010).
[51] Crispin, 717 F. Supp. 2d at 968.
[52] Crispin, 717 F. Supp. 2d at 986, 990–91.
[53] Crispin, 717 F. Supp. 2d at 988.
[54] Briones & Tagvoryan, supra note 34, at 38.
[55] See, e.g., Largent, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612.
[56] No. 11 Civ. 4374 (PGG) (FM), 2012 U.S. Dist. LEXIS 51658 (S.D.N.Y. Apr. 5, 2012).
[57] Glazer, 2012 U.S. Dist. LEXIS 51658, at *1-2.
[58] Glazer, 2012 U.S. Dist. LEXIS 51658, at *3.
[59] Glazer, 2012 U.S. Dist. LEXIS 51658, at *5-6.
[60] Glazer, 2012 WL 1197167, at *8; see also In re Air Crash near Clarence Ctr., N.Y., on Feb. 12, 2009, Nos. 09-md-2085, 09-CV-961S, 2011 U.S. Dist. LEXIS 146551 (W.D.N.Y. Dec. 20, 2011) (directing plaintiff to consent to disclosure of social media content and other information and noting that defendant may request written authorizations to obtain social media information from third parties if plaintiff’s production was insufficient).
[61] 907 N.Y.S.2d 650, 654 (N.Y. Sup. Ct. 2010).
[62] Romano, 907 N.Y.S.2dat 657.
[63] 270 F.R.D. 430, 436 (S.D. Ind. 2010).
[64] Simply Storage Management, 270 F.R.D. at 435; see also Mailhoit v. Home Depot, 285 F.R.D. 566 (C.D. Cal. 2012) (holding in a case involving social media evidence, that while a party may conduct discovery concerning another party’s emotional state, the discovery must still comply with the general principles of discovery under the Federal Rules of Civil Procedure).
[65] See Loporcaro v. City of N.Y., 950 N.Y.S.2d 723 (N.Y. Sup. Ct. Apr. 9, 2012) (granting access to certain portions of plaintiff’s Facebook account, including access to certain deleted materials); see also Howell v. Buckeye Ranch, Inc., No. 2:11-cv-1014, 2012 U.S. Dist. LEXIS 141368, at *3 (S.D. Ohio Oct. 1, 2012) (“Defendants are free to serve interrogatories and document requests that seek information from the [social media] accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of [plaintiff’s] social media accounts and provide the information and documents responsive to the discovery.”).
[66] 88 A.D.3d 617 (N.Y. App. Div. 2011).
[67] Patterson , 88 A.D.3d at 618 (internal citations omitted).
[68] No. 3:11-cv-01180, 2013 U.S. Dist. LEXIS 38795 (M.D. Tenn. Mar. 20, 2013).
[69] Potts, 2013 U.S. Dist. LEXIS 38795, at *2-3.
[70] Potts, 2013 U.S. Dist. LEXIS 38795, at *7.
[71] No. 1:10-CV-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011).
[72] Offenback, 2011 U.S. Dist. LEXIS 66432, at *6.
[73] No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D. Mich. Aug. 24, 2012).
[74] Douglas, 2012 U.S. Dist. LEXIS 120538.
[75] Douglas, 2012 U.S. Dist. LEXIS 120538.
[76] Douglas, 2012 U.S. Dist. LEXIS 120538.
[77] No. 3:09-00764, 2010 WL 2196591 (M.D. Tenn. May 27, 2010).
[78] 278 F.R.D. 387, 389 n.4 (E.D. Mich. 2012).
[79] No. 06-cv-01958-WYD-MJW, 2009 WL 1067018 (D. Colo. April 21, 2009).
[80] 281 F.R.D. 340, 344 (D. Minn. 2011).
[81] Holter, 281 F.R.D. at 344.
[82] No. 06-5337 (FSH), 2007 U.S. Dist. LEXIS 100915 (D.N.J. Dec. 14, 2007).
[83] Beye, 2007 U.S. Dist. LEXIS 100915, at *12-13.
[84] Beye, 2007 U.S. Dist. LEXIS 100915, at *3 n.1.
[85] Beye, 2007 U.S. Dist. LEXIS 100915, at *3 n.1.
[86] Beye, 2007 U.S. Dist. LEXIS 100915, at *9-10 n.3.
[87] No. 3:11-cv-632-J-JBT, 2012 U.S. Dist. LEXIS 20944 (M.D. Fla. Feb. 21, 2012).
[88] Davenport, 2012 U.S. Dist. LEXIS 20944, at *1.
[89] Davenport, 2012 U.S. Dist. LEXIS 20944, at *1.
[90] Davenport, 2012 U.S. Dist. LEXIS 20944, at *2.
[91] Davenport, 2012 U.S. Dist. LEXIS 20944, at *3.
[92] Davenport, 2012 U.S. Dist. LEXIS 20944, at *4-5.
[93] Davenport, 2012 U.S. Dist. LEXIS 20944, at *6 (citing Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 U.S. Dist. LEXIS 5749 (E.D. Mich. Jan.18, 2012)).
[94] 78 A.D.3d 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010).
[95] McCann, 910 N.Y.S.2d 614.
[96] McCann, 910 N.Y.S.2d 614.
[97] No. CV 12-72-M-DLC-JCL, 2013 U.S. Dist. LEXIS 452 (D. Mont. Jan. 2, 2013).
[98] Keller, 2013 U.S. Dist. LEXIS 452, at *4.
[99] Keller, 2013 U.S. Dist. LEXIS 452, at *12.
[100] Keller, 2013 U.S. Dist. LEXIS 452, at *10-11 (citing EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010); Glazer v. Fireman’s Fund Ins. Co., No. 11 Civ. 4374 (PGG) (FM), 2012 U.S. Dist. LEXIS 51658 (S.D.N.Y. Apr. 5, 2012)).
[101] Keller, 2013 U.S. Dist. LEXIS 452, at *11-12.
[102] Keller, 2013 U.S. Dist. LEXIS 452, at *13.
[103] 28 Pa. D. & C.5th 553 (Lackawanna Cnty. Pa. Ct. Com. Pl. Apr. 22, 2013).
[104] Brogan, 28 Pa. D. & C.5th at 556.
[105] Brogan, 28 Pa. D. & C.5th at 556.
[106] Brogan, 28 Pa. D. & C.5th at 559-60.
[107] Brogan, 28 Pa. D. & C.5th at 559.
[108] Brogan, 28 Pa. D. & C.5th at 554.
[109] Brogan, 28 Pa. D. & C.5th at 560.
[110] Brogan, 28 Pa. D. & C.5th at 563.
[111] Brogan, 28 Pa. D. & C.5th at 575 (citation omitted).
[112] No. 000014/10, 2011 N.Y. Misc. LEXIS 2323 (N.Y. Sup. Ct. May 5, 2011).
[113] Progressive Insurance Co., 2011 N.Y. Misc. LEXIS 2323.
[114] Progressive Insurance Co., 2011 N.Y. Misc. LEXIS 2323.
[115] Progressive Insurance Co., 2011 N.Y. Misc. LEXIS 2323.
[116] Progressive Insurance Co., 2011 N.Y. Misc. LEXIS 2323.
[117] No. 10-11735, 2011 U.S. Dist. LEXIS 121600 (E.D. Mich. Oct. 20, 2011).
[118] Chauvin, 2011 U.S. Dist. LEXIS 121600, at *3.
[119] Chauvin, 2011 U.S. Dist. LEXIS 121600, at *3–4.
[120] No. VA02000012633, 2014 WL 199960 (Va. Workers’ Comp. Comm’n Jan. 13, 2014).
[121] Wright, 2014 WL 199960, at *1.
[122] Wright, 2014 WL 199960, at *2.
[123] Wright, 2014 WL 199960, at *2.
[124] Wright, 2014 WL 199960, at *3.
[125] Wright, 2014 WL 199960, at *3.
[126] Wright, 2014 WL 199960, at *3.
[127] Wright, 2014 WL 199960, at *3.
[128] Wright, 2014 WL 199960, at *3.
[129] See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 843 (2010).
[130] Minn. Rules of Prof’l Conduct R. 4.2.
[131] Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2010-2 (2010). The New York State Bar Association has written Social Media Ethics Guidelines covering a variety of topics.
[132] Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02 (2009).
[133] Lester v. Allied Concrete Co., 83 Va. Cir. 308 (Va. Cir. Ct. 2011).
[134] Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013); see also Katiroll Co., Inc. v. Kati Roll and Platters, Inc., No. 10-3620 (GEB), 2011 U.S. Dist. LEXIS 85212 (not for publication) (D.N.J. Aug. 3, 2011) (defendant committed technical spoliation by changing Facebook profile picture, which was alleged to show infringement on plaintiff’s trade dress, and was directed by the court to place the profile picture back on the public portion of the site and allow plaintiff’s counsel to print relevant material).
[135] Debra Cassens Weiss, “Lawyer Agrees to Five-Year Suspension for Advising Client to Clean Up His Facebook Photos,” A.B.A. J. (Aug. 7, 2013).