A multi-part update series reviewing recent news, resources, and cases related to social media and the technical and legal challenges it creates in eDiscovery
In New Notifications, we reviewed updated social media usage statistics and other evidence of its growing evidentiary significance. In Growing Challenges, we reviewed three areas of growing or potential challenges and related news stories. In this Part, we discuss some recent social media cases.
Since we last revisited this topic, there have been a variety of new cases discussing issues related to social media in eDiscovery, including: discoverability, spoliation, ephemeral messaging, Slack sources, and others. Some of these cases were also discussed by XDD Managing Director of Consulting Services Liz Letak in an educational webinar last September and in an episode of XDD’s First Chair podcast last November.
In the New York state case of Vasquez-Santos v. Mathew, 2019 NY Slip Op 00541 (App. Div. 1st Dep’t Jan. 24, 2019), the plaintiff was a semi-professional basketball player claiming disability as the result of an automobile accident. The defendant identified pictures of the plaintiff playing basketball that were posted to social media after the accident, and the plaintiff testified that all such pictures had actually been taken prior to the accident. The defendant then sought a “motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities.”
The trial court denied the motion to compel, but that decision was unanimously reversed by the appellate court, which found the requested access to be “appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing plaintiff engaging in basketball or other similar physical activities.” In reaching this conclusion, the appellate court emphasized that it makes no difference whether photos on the plaintiff’s social media were taken by the plaintiff or by others: “That plaintiff did not take the pictures himself is of no import. He was ‘tagged,’ thus allowing him access to them, and others were sent to his phone” [emphasis added].
In the case of Locke v. Swift Transportation Company of Arizona, LLC, et al., No. 5:2018cv00119 (W.D. Ky. Feb. 4, 2019), the defendants argued that “postings and photographs by the Plaintiff post-accident are relevant to Plaintiff’s claims for injury and damages.” The defendants compared social media accounts to a “diary” and argued that:
. . . if any information is contained within the social media records of the Plaintiff that at all relates to the claim, then they should be entitled to inspection of the entirety of the digital record, just as they would be entitled to inspect a diary containing such information. [emphasis added]
The plaintiff objected to these broad requests “on the basis of relevance and proportionality” and compared social media accounts, instead, to:
. . . a filing cabinet containing a multitude of files with different types of information. Plaintiff admits that some files contained in this digital filing cabinet may be relevant to the claims or issues at hand, but Defendant is not entitled to unfettered inspection of all the filing cabinet’s contents. In other words, the relevance of some information in the filing cabinet does not mean that it is proportional to hand over the keys to the cabinet itself. [internal citations omitted; emphasis added]
The court agreed that the defendants were entitled to relevant social media materials, but it also agreed with the plaintiff that unrestricted access was not relevant or proportional. The court ordered the defendants to “identify, with specificity, what information it particularly seeks from Plaintiff’s Facebook and other social media accounts” and the plaintiff, “with the assistance of counsel, [to] review the account for such information.”
In the case of Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195 (ADC) (D.P.R. Jul. 15, 2019), the defendants sought production of relevant social media materials from the plaintiff. Initially, the plaintiff “responded, in essence, that she once had a social media account, but that it was closed and that she did not recall the name under which she had the account.” The plaintiff’s story evolved several times, however, as new information came to light:
The defendants sought dismissal as a sanction, arguing that the overall course of conduct and the ultimate spoliation amounted to “fraud on the Court.”
The court held that the plaintiff had “failed to comply with her obligation under Fed. R. Civ. 26(e) to supplement discovery responses” and that the plaintiff’s “deletion of her Facebook account amounts to spoliation,” which “may have caused prejudice” by depriving the defendants of “relevant metadata that would have been contained in the deleted Facebook page” [emphasis added]. The court did not find, however, that the plaintiff had committed fraud on the court and, so, applied an adverse-inference jury instruction sanction rather than dismissal.
In the case of Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101 (W.D. Ark. Jul. 3, 2019), the parties agreed during their meet and confer “that [the defendant] might request data from [the plaintiffs’] mobile phones and that the parties had taken reasonable measures to preserve potentially discoverable data from alteration or destruction.” During discovery, the plaintiffs produced screenshots of a limited number of relevant text messages – all prior to a particular date. After a motion to compel, the plaintiffs “produced additional text messages from those text message conversations, but nothing more recent” than that same date.
Later, it was revealed during deposition testimony that – around that date – the plaintiffs had switched from communicating via text messages to communicating using Signal, which “allows users to send and receive encrypted text messages accessible only to sender and recipient, and to change settings to automatically delete these messages after a short period of time.” The plaintiffs had “set the application to delete their communications” [emphasis added].
The court found this course of conduct to amount to intentional, bad-faith spoliation that would have warranted sanctions were the case not already being dismissed on summary judgment:
This intentional, bad-faith spoliation of evidence was an abuse of the judicial process and warrants a sanction. The Court need not consider whether dismissal, an adverse inference, or some lesser sanction is the appropriate one, however, because in light of the motion for summary judgment, [the plaintiffs’] case can and will be dismissed on the merits.
Upcoming in this Series
Next, in the final Part of this series, we will conclude our 2020 social media update with a review of some more recent cases.