Social media is a game changer in regards to personal injury claims. That applies to both sides. For instance a defense expert posts on a Facebook page that he would never testify on behalf of a plaintiff. He goes on to say he believes the entire tort system is a failure. That is relevant.
Personal Injury and Social Media
Virginia’s spoliation law needs special heed when it comes to social media postings. Social media content can be harmful based upon the content. In addition it can be harmful if the social media is destroyed after the claim arises. Losing the evidence when a reasonable person should have foreseen it was material to a potential civil action is a problem. It is important make sure the client retains all such postings once the claim arises.
Some clients are addicted to social media. Any cautions to cease posting may be disregarded.
Social Media in The Public Domain
The content of social postings is discoverable if they are in the public domain. There is no right to privacy or privilege that protects those postings. Content that is maintained as private is another issue. If what is available in the public domain is relevant to the lawsuit that is the basis for seeing what is posted privately.
Broad requests for all social media content are subject to objection. Likewise requests for all social media content using an internal archive feature is overly broad. The request for social media content must be narrowly tailored. It is not a fishing expedition.
There must be some factual predicate for making the request. In other words, there must be a showing based upon facts already in the record. Those facts must point to there being additional discoverable info. These facts are the public account. For instance, info in the publicly available portion of a user’s profile is the basis for further discovery. Therefore the starting point is informal discovery. That informal discovery consist of searching all publicly available info. This is done through Google, Facebook or Instagram. Check other social media pages. Those public pages may point to there being more. After exhausting all publicly available info then formal discovery tools are appropriate. Call or contact us for a free consult.
Personal Injury and Social Media Discovery
Some things that in most cases cannot be obtained through discovery are:
- Login credentials.
- Info from the social media services. The Stored Communication Act found in 18 U.S.C. § 2701 forbids providers “from disclosing the contents of an account to any nongovernmental entity pursuant to a subpoena or court order.
In the case of James v. Edwards, 85 Va. Cir. 139 (2012) the plaintiff alleged severe injuries after an auto crash. His Facebook page contained a photo of him binge drinking and attending parties. Defense counsel moved to compel his Facebook username and password. They also wanted complete copies of the contents of the Facebook account. Although the court refused to compel disclosure of username and password it did permit the defendant to access the plaintiff’s Facebook account. This was under supervision of plaintiff’s counsel.
Settling simply for screen shots of social media content is not enough. An extensive amount of content is missed with simple screen shots. In addition there is no meta data that is provided.
“Internal archive functions” may not be enough. A forensic collection tool will reveal not only what was posted but when it was posted. In addition it will show from where it was posted. In other words the postings may have occurred moments after a crash. They may have occurred at the crash site. All of that is relevant.
Social Media and Texting-Objections
When dealing with this type of data, there are several objections that may arise relating to:
A. Discoverability;
B. Authenticity;
C. Best Evidence.
Discoverability.
- Dealing simply with text messages, if there is going to be an issue as to the recoverability of the text messages from the phone itself, then it is probably important to get a preservation letter out to the phone company requesting that these messages be preserved. To the extent that they may be preserved by any phone company, they typically are not preserved for more than 90 days.
- As to data from Facebook, there must be some factual predicate laid in order to gain access to someone’s Facebook page. The best way to start laying that factual predicate is simply to Google the person’s name. If their social media page comes up on the results page, then go to that page and see what is available. What is available is going to be a function of the privacy level that they have designated for that account. If that search discloses information relating to the incident that is the subject of the lawsuit, then there may be a basis for making a request for the entire account.
No Rummaging.
Defendants do not have “a generalized right to rummage at will through information that plaintiff has limited from public view.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012). This is particularly so where the defendant(s) have not shown any factual predicate for doing so. Courts throughout the country have refused to compel discovery of “social media” where the defendant has failed to show a factual predicate. See e.g., Hoy v. Holmes, 107 Schuylkill L. Rev. 19, 23 (2013) (“We agree that a factual predicate has to be shown by the party seeking discovery for non-public information posted on social media.”); Trail v. Lesko, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194, (Alleg. Co. 2011) (information contained in the publicly available portions of a user’s profile should form a basis for further discovery); Zimmerman v. Weis Markets, Inc., 2011 Pa. Dist. & Cnty. Dec LEXIS 187, (Northumberland Co. 2011) (“[b] based on a review of the publicly accessible portions of his Facebook and MySpace accounts, there is reasonable likelihood of additional relevant and material information on the non-public portions of these sites.”);
Brogan v. Rosenn, Jenkins & Greenwald, LLP, 28 Pa. D. & C. 5th 553, 555 (C.P. 2013) (“social media discovery requests must be properly framed with reasonable particularity so that only relevant and non-privileged information is sought and produced.”); McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Disc. & Cnty. Dec. LEXIS 270 (Jefferson Co. 2010) (review of plaintiff’s public Facebook page suggested private posts contained discoverable information); Keller v. Nat’l Farmers Union Prop. & Cas., 2013 U.S. Dist. LEXIS 452 (D. Mont. Jan. 2, 2013) (holding defendant could not delve “carte blanche” into plaintiff’s social media accounts without threshold showing that content undermined plaintiffs’ claims in the case);
McCann v. Harleysville Ins. Co. of N.Y., 78 A.D. 3d 1524, 1524 (N.Y. App. Div. 2010) (holding Facebook account outside scope of discovery where defendant failed to establish factual predicate “with respect to the relevancy of the evidence”); Kregg v. Maldonado, 98 A.D. 3d 1289, 1290 (N.Y. App. Div. 2012) (denying discovery of Facebook account, holding “the 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.”); Higgins v. Koch Dev. Corp., 2013 U.S. Dist. LEXIS 94139, *9 (S.D. Ind. July 5, 2013) (granting discovery of Facebook account from date of injury until date of plaintiff’s deposition specifically regarding the injuries incurred, “employment activities, outdoor activities, and enjoyment of life reasonably related to those injuries and their effects”);
Authenticity.
How you collect data is going to be critical. Depending on the particular type of communication you are dealing with, there may be as many as three (3) different ways to gather this data.
- Screen Shots. Screen shots simply involve hitting the print screen button. This type of document does not contain any metadata and because of that and for other reasons, there may be some issues with admissibility, in particular relating to the so-called “rule on completeness”.
- There may be a self-archive function. This exists in particular with Facebook which allows the download of virtually all of the data that is on the account. To do that, there must be access to the username and password. In gaining access through this mechanism, there may be issues with preservation of metadata and it may be that simply by gaining access in this fashion, some of the data may be changed. Professionals gaining access in this fashion typically use devices known as “write blockers” that preserve the integrity of the original data in all respects but then allows it to be copied verbatim.
- There are different collection tools that may be used such as X1 Social Discovery which generates all of the metadata and all links into the site. This particular tool can be used independent of any particular site to generate all data communications coming from a particular geographical site. For instance, if you want to eavesdrop on Twitter, Instagram and You Tube communications coming from the courthouse, this site allows that function. Since all of these communications are within the public domain, there is no prohibition. Depending on your level of sophistication, the use of a tool such as X1 may require expert involvement. Keep in mind that many of these forms of media, in particular texting, allow the user to delete certain text messages as part of the string of messages. If all of those messages relate to the same issue, then under the rule of completeness, they should all be produced. Therefore whenever dealing with any form of electronic communication or social media, it’s important to address the following:
(i) Who handled the evidence before it was collected? This is important to know because there may have been some deletions.
(ii) Who handled the actual collection? This is important to know because there may have been some deletions.
(iii) Has the original been preserved i.e., through a system such as Write Blocker?
(iv) What is the chain of custody for all of the collected data and are the hash values of these data composites identified? The hash value will tell you whether or not the copy is in fact the same as the original. There are a host of cases referenced in the following cases below that deal with these issues of authenticity: Dalton v. Commonwealth, 64 Va. App. 512, 521, 769 S.E.2d 698, 703 (2015); Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D. Md. 2007); Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011)
Best Evidence
Although Virgnia does not specifically require that digital evidence be presented in its original form, there is the general observation that when one sets out to prove something, it should be proven by the most reliable evidence available.
More Info
Call or contact us for a free consult. For more information in regards to personal injury claims see the other pages on this site. For more information on social media see the pages on Wikipedia.
