Organizational litigants such as corporations have been able to level the playing field in recent years—strategically and tactically—because, although they must identify, collect and produce a greater volume of documents and electronically stored information (ESI) than an individual opposing party, they now have access to potentially highly relevant ESI created by individuals themselves on the Internet, from social media, blogs, picture sites and other sources. Much of this information is low hanging fruit, but what steps should be taken to acquire it and when?
In Part 1 of this article, we discussed evidence that individuals create on social media accounts, on their smart phones and in the cloud. In Part 2, we discussed the role this content plays in many types of civil and criminal cases, where it is used by companies, government agencies and other organizations in both defensive and offensive ways. In Part 3, we will discuss practical methods for acquiring, searching for and using this valuable evidence.
Anything that a non-litigant could and would do to learn information about a person should be done in respect to parties and witnesses in litigation, as well as experts and potential jurors. There is one caveat: Under the lawyers’ rules of ethics, the subject can’t know that they are being researched, or the possibility of harassment and undue influence may be raised. Aside from that caveat, searching names on whitepages.com, checking out a subject’s public social media presence on Facebook, Twitter, Pinterest, Flickr, LinkedIn, Picasa or any of a myriad of sites, is essential baseline research. From there, following up on family members and friends from the same sources builds out a picture of the litigant or witness.
Does the individual belong to user groups? Have they posted messages to any boards? Is it relevant that they made online purchases and entered comments later about the product on Amazon or eBay? Did they stay at a hotel or eat at a restaurant and write a review on Trip Advisor? Never have the opportunities to offer one’s opinions been so vast. Opinions and views are grist for the litigation discovery mill and should be researched.
Litigation paralegals are becoming highly skilled at running down this information, but there are also private investigators whose specialty is finding every nook and cranny on the Internet where a subject has a non-password protected presence. No discovery demands need be served to acquire this information.
In federal court, parties must make initial disclosures under Fed. R. Civ. P. 26(a)(1)(A). Although the language of the rule does not describe web-based information or social media content as subjects of initial disclosures, parties should discuss this type of content in the early meetings or Rule 26(f) conferences as content that must be preserved and that will be the subject of discovery. If a party believes that such content may be changed or deleted, it may be prudent to request a pre-emptive forensic collection of the content by a neutral professional who is qualified to perform such collections and is trained and skilled in using the appropriate software.
Serve an interrogatory that specifically asks for all social media and picture site memberships, blogs and other sources of an online presence. This should be a broad request. Facebook may be the most common and popular social media site, but there are many sites that cater to specific interests, ranging from motorcycle enthusiasts, skiers and rock climbers to stamp collectors and rock hounds. What could be more appealing to the hobbyists who frequent these sites than pictures of like-minded people riding, skiing, climbing, or displaying their treasured collections?
Ask for a list of all devices the party uses and apps that have been purchased or downloaded, either for free or for a charge. Photos can be snapped using an iPhone and uploaded to sites such as Flickr, Collect, Instagram, PicFrame or Persnickety using an app that can be downloaded from the Apple store, so it is important to know about the on-line picture site as well as the presence of pictures on the phone. The requested list of apps should include games and other activities. There may be evidence on a mobile device that a person was playing a game or accessing a site while they were at work or supposed to be doing something else. Or, a person who claims to have diminished enjoyment of life may have recorded enthusiastic reviews about dozens of wines on Vivino.
Along with the list of sites, memberships, and apps, request the user names and passwords for each site and app. In relation to the product, hotel and restaurant reviews discussed above, ask for the user name under which the comment or review may appear.
Requests for production
Request all actual online content that relates in any way to the case. Your requests can and should be as broad as that, but should also be specific, and the complaint is a road map for the types of content you should seek. Does the plaintiff seek damages for emotional distress? If so, any expression of emotion or a description about how a person feels is fair game for discovery. Does the party seek damages for personal injuries? Pictures—whether posted by the party or by someone else—are great sources of information about what physical activities the person is capable of performing. Does the party seek damages for loss of enjoyment of life? These days, everyone is documenting their lives, right down to the minutest detail, including the meals we eat. A litigant who enjoys, photographs and exclaims over a great meal at a restaurant is probably, at least to some degree, enjoying life.
Third party subpoenas
An individual party may have friends, acquaintances, family members and colleagues who are witnesses in the case. Some of these individuals’ online content may be relevant to a case. A friend may put photos and posts on his or her own Facebook page that are highly relevant to the claim you are defending.
It may be necessary to serve a subpoena on a website or social media site. Check these sites for directions about how to serve subpoenas. Although cases have interpreted the Stored Communications Act, 18 USC §§ 2701 et seq., as requiring that a site may resist a subpoena for content, and that content can only be obtained with a user’s log in credentials, it may be that you seek metadata and log information that you can only get from the provider site—for example, if you want to show that some information was deleted while the person was under preservation obligations. Obtaining that information requires a subpoena.
Organizations that are sued by individuals are often beleaguered by e-discovery requests and the costs and burden of responding to them. If the plaintiff—or a key witness—is an individual, that person may have a rich and well-documented on-line life replete with pictures, opinions and commentary. This information is not only fair game in litigation, but is now viewed as an essential part of discovery that lawyers should know about and seek. A litigator’s game plan must include the identification and acquisition of this information.