Judge rejects party's offer to hand over blog credentials (login/password) instead of documents during discovery

In the highly contentious realm of electronic discovery where login passwords are zealously guarded, one plaintiff had no qualms about granting such access if it meant evading her burden of production in an acceptable format.

In German v. Micro Elecs., 2012 U.S. Dist. LEXIS 4594 (S.D. Ohio 2013), the trial court held it impermissible for a party to shift its burden of production due to the party’s refusal to produce the sought after electronically stored information (ESI) in an acceptable format.

In a discovery dispute arising from an employment action, the plaintiff offered to provide the defendants with her login credentials and passwords to her blogs and websites she frequented in lieu of producing responsive ESI. The defendants refused the offer due to the risk of being accused, or found to have altered relevant evidence.

Although it was an unusual offer, the defendants’ attorney employed commendable dexterity in effectively forecasting the risk associated with accepting the plaintiff’s offer to hand over her passwords.  

During the course of discovery, the defendants requested that the plaintiff produce all online postings, blogs and similar online activities that addressed the plaintiff’s workplace, health condition, or other issues raised in her complaint. 

The plaintiff responded by sending over a hundred pages of portions of blogs and websites that she had copied and pasted without any source attribution. The defendants rejected the submission because it considered the production deficient as it did not capture the original and complete text, formatting, and images of a blog or website. The defendants suggested that the plaintiff utilize a portable document format (PDF) or any format that is reviewable and that captures the documents in their original format. 

Although the plaintiff characterized herself as an extensive blogger and sophisticated user of the Internet, she stated that defendants’ request for production of screen shots or PDF was particularly too burdensome.  As an alternative, she offered the defendants direct password access to all her online journals, blogs, and social media websites.

The court found the plaintiff's excuse and suggestions to be unacceptable and noted that despite the defendants not requesting a specific form for producing the ESI, the plaintiff had a burden to produce the requested information in a form that the information is ordinarily maintained or in a reasonably usable form. The court ruled that the copied and pasted excerpts were neither an acceptable nor reasonable form of production. 

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Judge allows discovery of private Facebook postings and photos in sexual harassment case

In an order, found here: Reid v. Ingerman Smith, LLP (E.D.N.Y Dec. 27, 2012), Magistrate Judge Marilyn D. Go granted (and denied in part) a motion to compel discovery of plaintiff Reid's social media usage. The case itself revolves around a sexual harassment claim brought by Reid against Ingerman Smith for an incident while Reid was employed as a legal secretary. More details regarding the case can be found here (in an order to deny in part and grant in part a motion to dismiss the case, authored by Judge Glasser).

Judge Go agreed with the defendants that Reid's Facebook postings and comments on photographs placed on Facebook were relevant to whether Reid had actually experienced the emotional distress she claimed resulted from the sexual harassment. The court reviewed how other jurisdictions had dealt with similar questions, after observing that: "[a]lthough the law regarding the scope of discovery of electronically stored information ("ESI") is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable." The ultimate issue, then, as summarized by the court:

The defendants argue that since postings and photographs from the public portions of plaintiff's Facebook account contain information that contradict plaintiff's claims of mental anguish resulting from the alleged sexual harassment by defendant Sadowski and termination of her employment, the non-public portions may also provide relevant information. Plaintiff responds that she should not be subject to broad discovery of the entirety of her social media account and be required to disclose private information.

I think any court facing this dilemma is trying to do two things: (1) facilitate discovery of information that is no doubt relevant to the claims in the case, but more importantly, (2) attempting to prevent further emotional damage to the plaintiff, whose privacy was already violated once by the sexual harassment, by limiting the reach of the prying inquiry requested by the defendant. I'm not necessarily convinced Judge Go achieved the second goal adequately. At least in the order, she exempted trivial personal information and photographs from birthdays, but did not really delineate what should be excepted. She offered stipulations at the end regarding discovery, but it remains to be seen if the scope will be as limited as she imagined with such a dearth of adequate guidance by the court.

The court summed up its thoughts as follows:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more "germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose" rather than to affording a "basis for shielding those communications from discovery." E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). 

Even had plaintiff used privacy settings that allowed only her "friends" on Facebook to see postings, she "had no justifiable expectation that h[er] 'friends' would keep h[er] profile private . . ." U.S. v. Meregildo, 2012 U.S. Dist. LEXIS 115085, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, "the wider h[er] circle of 'friends,' the more likely [her] posts would be viewed by someone [s]he never expected to see them." Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation of e-mail with greater expectation of privacy of materials located on a person's computer). (emphasis added)

While many courts have stated that Internet communications are less protected, I'm not convinced that you can fully analogize a Facebook posting to an email. Here's why: An email has no built in protection to prevent forwarding to third parties; Facebook does - you personally limit who can see what on your page, and that effort in and of itself shows a subjective intent to retain an expectation of privacy in those posts. It is not a difference in kind, and I would never argue it was, but the continual need to analogize differing internet communications to email to appeal to more settled court precedent is troublesome.

I'd like to reiterate that I am not arguing the information requested isn't germane to the case, indeed, it is likely so. But, sweeping under the rug the difference between Facebook and other electronic communications does a disservice to users of these sites. It also erodes the ability of an individual to protect their own privacy interests through use of privacy mechanisms employed by electronic services such as Facebook; what's the purpose of such mechanisms, if all communications on Facebook are essentially, if not explicitly, lumped together?

My favorite part of this ruling follows:

statements regarding plaintiff's social activities may be relevant to plaintiff's claims of emotional distress and loss of enjoyment of life. The postings may also provide information regarding potential witnesses with knowledge. Thus, plaintiff must disclose social media communications and photographs "that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." Simply Storage, 270 F.R.D at 435-36; see also In re Air Crash, 2011 WL 6270189, at *6 (W.D.N.Y. 2011) (ordering disclosure of electronic communications, including social media materials, as they relate to decedent's domicile and claimants' loss of support claims). Likewise, photographs uploaded by plaintiff, as well as photographs uploaded by third parties depicting plaintiff are discoverable, while other photographs that have a more tenuous connection with the party are less likely to be relevant. Clearly, "pictures of the claimant . . . will generally be discoverable because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status" while "a picture posted on a third party's profile in which a claimant is merely 'tagged' is less likely to be relevant." Simply Storage, 270 F.R.D. at 436.

Two comments: (1) "social media communications and photographs" that reveal or relate to "any emotion, feeling, or mental state" essentially comprises anything on Facebook. Short of a picture of a tree in a field, everything on Facebook has a "feeling" connotation. Even the picture of a tree just mentioned could show a "mental state" focused on "trees." Is that helpful? The court's words are just about as vague and unhelpful to what is within the scope of social media discovery as I have ever seen. (2) photographs uploaded by third parties depicting plaintiff are discoverable? Wow. What about if those photos contain locational EXIF data, or private information a third-party believed would remain within a small social sphere? Once again, I am not arguing this type of information may or may not be relevant, but some guidance by the court regarding third-party privacy should have been noted. I ardently ascribe to judicial precision and narrowness, but not when a few extra words would clarify an order which the court admits falls in an area of judicial and legal instability.

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Judge denies discovery request for Facebook data

A federal magistrate has denied a motion to compel Facebook records in a slip and fall case. The plaintiff claimed back injuries, but the defendant suggests the plaintiff might be faking some of her injuries (they have a surveillance picture of her pushing a grocery cart). Tompkins v. Detroit Metro. Airport, 2012 U.S. Dist. LEXIS 5749 (E.D. Mich. 2012).

The court found that the Facebook data is not relevant because the plaintiff is not alleging that damages that prevent her from, for example, pushing a grocery cart. "If the Plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument." Further, the judge noted that the defendant's request for the entire account was overly broad.

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UK study reveals 33% of divorce petitions cite Facebook as a problem

In a study conducted by Divorce Online in the United Kingdom, 33% of divorce petitions filed in 2011 used Facebook posts as evidence of behavior that led to the breakup (up from 20% in 2009).

There were three main reasons that Facebook was mentioned:

1. Inappropriate messages to members of the opposite sex. 
2. Separated spouses posting nasty comments about each other. 
3. Facebook friends reporting spouse’s behavior.

I'm sure that we have all seen our Facebook friends posting horrible things about their spouses, but I'm also sure that few of them expect those posts to end up appearing in legal documents.

Courts are still struggling with how to deal with social media discovery in civil cases. Some courts require the parties to "friend" each other. Understanding that privacy settings may restrict what can be viewed, others have ordered disclosure of login information. However, both of these options may lead to disclosure of information that is irrelevant and not subject to discovery. Some courts have conducted in camera review of the parties' accounts. Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. 2011); Barnes v. CUS Nashville, Inc., 2010 WL 2265668 (M.D. Tenn. 2010). With the addition of Facebook's download feature, we may see that option become the predominant method in the near future.

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Sanctions may be ordered where employee reformatted drive to remove CP

In Océ North America v. MCS Servs., 2011 U.S. Dist. LEXIS 141209 (D. Md. 2011), the court held that an employee wiping a hard drive that contained child pornography was a violation of the company's discovery obligations.

Océ was involved in a lawsuit and was under a preservation order. The company had sent e-mails to every employee ordering them not to delete any information from their computers. One employee, however, used software to remove data from his computer. Océ argued that the employee's intent was to delete child pornography on the hard drive - as opposed to company data - and that removing data possibly subject to discovery was not done with a culpable state of mind required for sanctions.

The court found that the employee's negligent conduct would satisfy the culpability element of spoliation, subjecting Océ to possible sanctions.

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Facebook download feature useful in ESI discovery

Though it came out about a year ago, I have just now used the "Download Your Information" feature to do just that with my account. It allows a user to download nearly all activity they have had since joining Facebook into a single ZIP file.

While it doesn't include what I have done on other's profiles and posts, everything that has ever been posted on my wall is there - all the way back to the first wall post on March 5, 2005 (Facebook was so much simpler back then!). It's all collected into a single HTML file along with all of the pictures that others and myself have posted. A separate page contains links to all of the pictures and videos I've uploaded to Facebook. A list of friends (alphabetical by first name) is included as well as another page that lists every message I have ever sent or received.

As you might imagine, this service could be very useful during discovery. In several cases, judges have ordered parties to share their Facebook password with the other side. Simply downloading your client's information and passing it along would be a much easier process and when done early, it would ensure preservation of the data. There is no guarantee, however, that this file will contain deleted data, which Facebook only keeps for 90 days. That information may need to be obtained via subpoena directly from Facebook.

To try it out for yourself, open Facebook, click the arrow in the upper-right corner, and select "Account Settings." Then click "download a copy" near the bottom of the page. Once you get the process started, you'll be able to return in a couple hours to download the file.

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North Carolina modifies rules for ESI

Effective today, the North Carolina Bar Association has modified their civil procedure rules regarding electronically stored information (ESI). Unlike the federal rules and those adopted by most states, it includes a provision stating that ESI includes metadata that provides information related to "the date sent, date received, author, and recipients." Other metadata is not included without party agreement or court order.

Otherwise, the adoption includes the rules of most states (and the federal rules) regarding ESI:

• Adds ESI to the definition of discoverable materials.
• The court can set conditions for discovery and specify cost allocation.
• ESI that is not reasonably accessible because of undue burden or cost may be ordered for good cause.
• Discovery meeting should include a plan for ESI, preservation, and "the media form, format, or procedures by which such information will be produced."
• Failure to provide ESI as a result of routine, good-faith operation of an ESI system is non-sanctionable without exceptional circumstances (referred to in the federal rules as the "safe harbor" provision).
• If electronic information protected by privilege is disclosed, the receiving party must return or destroy the information.

By the most recent count, fourteen states have yet to adopt special ESI rules, including Colorado, Florida, Georgia, Hawaii, Illinois, Massachusetts, Missouri, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Washington, and West Virginia. Some courts within these states have adopted e-discovery rules. For a list of applicable rules for each state, click here.

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PA appeals court finds text messages not properly authenticated

In Commonwealth v. Koch, 2011 WL 4336634 (Pa. Super. Ct. 2011), the court held that text messages were not properly authenticated and should not have been admitted as evidence. The detective "testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Appellant. He acknowledged that he could not confirm that Appellant was the author of the text messages and that it was apparent that she did not write some of the messages. Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible." Neither the alleged sender or recipient testified at trial to authenticate the messages.

Courts often require a heightened standard for admission of electronic evidence because of the ease of falsifying this information, and a phone number or e-mail address tying it to the supposed sender is insufficient. Parties must take it further in order to show the alleged author was, in fact, the author. Other courts have shown admission of text messages by:

• Testimony from cell phone company, investigator, and co-conspirators (United States v. Hunter, 266 Fed.Appx. 619 (9th Cir. 2008))
• Recipient testifying that messages were received on his phone under the author's name and that each contained the author's unique signature (State v. Thompson, 777 N.W.2d 617 (N.D. 2010)) (Note, however, that the issue in Koch was that the cell phone was used by multiple people. Thus, a unique signature may not be influential.)
• Text messages contained details only the defendant would know (Massimo v. State, 144 S.W.3d 210, 216 (Tex. App. 2004))
• Author providing their car model and name (State v. Taylor, 632 S.E.2d 218 (N.C. Ct. App. 2006))
• Message showing up under saved number on witness's phone, victim's phone was found near her body, and evidence suggested no one had used her phone that day (State v. Damper, 225 P.3d 1148 (Ariz. Ct. App. 2010))

Many cases look to authentication requirements of electronically stored information (ESI) generally and do not apply specific rules for a specific type device. Therefore, authentication rules applying to e-mails or Facebook posts might also work for text messages. For example, a text message from Author saying he will go to a certain place at a certain time and evidence showing that he was there at that time, would be properly authenticated. Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011).

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NY Bar releases best practices guide for E-Discovery

The New York State Bar Association recently released a best practices guide (PDF available here) to help practitioners better understand this often murky area. The guide is particularly helpful with regard to the form in which electronically stored information (ESI) should be produced as well as the steps a party should go through in a search for documents within a discovery request.

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SNS printout authentication attempt struck down

In State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011), the defense sought admission of a Facebook messaging conversation between the defendant and a witness for the prosecution. The witness admitted that the messages were sent to her account, but she was not the author. Rather, her account had been hacked. The defendant claims that he was removed as the witness's Facebook friend days later, but the witness claims she still did not have access to her account. Ultimately, the trial court found that the messages were not properly authenticated and were thus inadmissible.

The appellate court affirmed, finding that there was not enough circumstantial evidence to authenticate the printout. Citing a variety of cases from other states (the issue was one of first impression for the court), the court essentially made it impossible to admit any evidence from an Internet source without an admission from the author.

Barring discovery and financial issues, here are some ways it possibly could have been authenticated:

• Internet cache connecting the postings to the witness's computer. (Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011))
• Facebook representative testimony connecting the messages to witness's IP address at the time. Griffin v. State, 2011 Md. LEXIS 226 (2011)
• Unique information others would not have been aware of. (Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011); Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011))

UPDATE: The Connecticut Supreme Court has since granted defendant's appeal with regard to this issue (302 Conn. 945 (2011)).

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