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eDiscovery Update: Is social media the new email for e-discovery?

Peter Coons

Social media is the new email. It’s the new gold mine for attorneys seeking electronic evidence. But it is so much more than email. In addition to words there are pictures. Pictures are worth a thousand words, especially when it is a picture of the plaintiff skydiving when he is supposedly injured and on medical leave.

So how do attorneys get that gold in the mine? Is there a magic pickaxe? Is it as simple as requesting all the posts, tweets, pictures, messages, thoughts, pokes and likes on Facebook, Instagram, Twitter, Foursquare, MySpace and any other social media site that has potentially relevant material? Unfortunately, it is not that easy.

New York courts are slowly changing their approach to discovery and requests for social media evidence. Parties should not expect a request for all facebook postings, pictures and messages to be granted. Courts are steering towards a more judicious and targeted approach; an approach that includes deposing the witness and inquiring about their social media usage and how it may relate to the case at hand.

Courts may also require that counsel do some digging to identify any publically available posts, pictures or messages prior to a deposition. What if it’s not public? That might be more difficult to get at, but use your head and don’t try to “friend” someone under false pretenses in order to gain access.

In Caban v. Plaza Construction, a personal injury case in Queens County, the plaintiff opposed the request for his Facebook username and password on the grounds that the request was overly broad and did not ask for specific information in the account. They claimed it was merely a fishing expedition citing Patterson v. Turner Construction and McCann v. Harleysville Insurance Company. The court agreed with the plaintiff and denied without prejudice and ordered a new demand be served that provides a “more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The court also ordered the plaintiff to appear for an additional deposition and answer questions about the types of information posted on his Facebook page. “At the plaintiff’s prior deposition, his counsel directed him not to answer questions regarding his Facebook account stating that it would be the subject of motion practice.”

In Cuomo v. 53rd & 2nd Associates, another personal injury case in NY County, the plaintiff also opposed the request for his Facebook account information on the grounds it was “irrelevant, overbroad and is being utilized as a fishing expedition.” The court agreed that the information was indeed discoverable “… to the extent the face book account contains information that is relevant and contradicts or conflicts with this alleged restrictions, disabilities and losses …”.

The court stated that the request must be specific and narrowly tailored. The defendant’s counsel indeed believed they would find relevant information on the site because the plaintiff discussed his usage of the account at a deposition where he admitted he posts photographs of himself. Because plaintiff claimed he could no longer play certain sports, dance or engage in other physical activities, the court agreed that any photographic evidence to the contrary was discoverable.

Both cases provide examples of New York courts not permitting unfettered access to social media accounts. Requests for messages, posts or photographs should be narrowly tailored and specific. Before you make a request go to the site and see what is available. If you are not familiar with how Facebook or other sites operate then find someone in the office or at home that does.

There are also other sites than Facebook and Twitter. So make a point to ask the witness what social media sites they use. There are also social media search engines where you can enter someone’s name and it may reveal that they have a MySpace account in addition to one on Facebook; spokeo.com is one such site. Go to that site and put in your own name and city. Interesting results?

Something else to ponder is where is all of this social media evidence? Yes it is on “XYZ social media” site’s servers. But one might also be able to find it on mobile devices, laptops or any device that was used to access a social media site. If you can get access to a user’s mobile device and recover social media evidence then you may not have to go through the aforementioned hoops!

Peter Coons is a senior vice president at D4, providing eDiscovery consulting services to clients. He is an EnCase Certified Examiner, an AccessData Certified Examiner, a Certified Computer Examiner (computer forensic certificates) and is a member of the High Technology Crime Investigation Association, the professional organization for people involved in computer forensics.