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Posted on: January 29, 2016

in Blog

Is Facebook a Protected Class of Evidence?

This article was originally published on "The Daily Record".

This blog debates privacy and the importance of proving relevant evidence exists when requesting information from Facebook and other social media accounts.

Discovery is not a game of “Go Fish”. To some extent it’s like playing an open hand of poker or maybe, Texas Hold’em. There is openness to the process. After a proper request, you show me your evidence and I will show you mine. However, in today’s digital menagerie it can difficult to find all the sources of information or know what to ask for. But sources are found, they should be treated equally. For example, attorneys routinely search through their client’s email repositories to identify relevant communications or documents. Many of those emails may be private or unrelated to the matter. Additionally, emails are typically “private” and not in the public domain.

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What am I getting at here? If emails and other electronically stored information are routinely reviewed and vetted by attorneys in an effort to determine relevancy, then why shouldn’t that same process apply to social media evidence? That is the same question posed and somewhat answered by the NY Supreme Court, Appellate Division in an opinion dated December 17, 2015.

Forman vs. Henkin

The matter, Forman vs. Henkin, was a personal injury case. The plaintiff was injured while riding a horse owned by the defendant. She fell from the horse and stating that her injuries were a result of negligence on the part of the defendant, claiming she suffered both physical and cognitive injuries due to the accident.

Of course, like most humans, Forman maintained a Facebook account, “[a]t her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.” And of course, the defendant wanted unfettered access to the account to find any postings, messages or pictures that may contradict any claims of injuries sustained due to the fall.

The Court granted the defendant’s request and directed the plaintiff “to produce all photographs that rider privately posted on social media website prior to accident that she intended to introduce at trial, all photographs of rider privately posted after accident that did not show nudity or romantic encounters, and authorizations to obtain records showing each time rider posted private message after accident.”

Plaintiff objected and the Appellate Court reversed the decision, stating that the defendant had failed to establish a factual predicate that discovery of plaintiff’s Facebook account would lead to discoverable evidence. Simply stated, just because plaintiff has a Facebook account doesn’t mean it should be handed over without good reason.

The Court relied on previous rulings where Courts have “required some threshold showing before allowing access to a party’s private social media information” and likened unfettered access to a fishing expedition. The Court stated that permitting “the unbridled disclosure of such information, based merely on speculation that some relevant information might be found, is the very type of “fishing expedition” that cannot be countenanced.”

Is Social Media Different Than Other Sources of Evidence?

Once again, a tailored document request is the best way to proceed but when asking for everything usually gets one nothing. However, this is only half the story in this opinion and not the part I found most interesting. I gravitated toward the one dissenting opinion, written by Justice David Saxe. Based on my interpretation of the reading, Justice Saxe feels that courts are treating evidence from social media sites differently from other sources. In his opinion he included the following statement from a federal magistrate:

“Some courts have held that the private section of a Facebook account is only discoverable if the party seeking the information can make a threshold evidentiary showing that the plaintiff’s public Facebook profile contains information that undermines the plaintiff’s claims. This approach can lead to results that are both too broad and too narrow. On the one hand, a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff’s claims. On the other hand, a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section. The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it. Furthermore, this approach improperly shields from discovery the information of Facebook users who do not share any information publicly. For all of the foregoing reasons, the Court will conduct a traditional relevance analysis.”

This sounds thorough and logical to me and more importantly complies with the FRCP. It is the same process one should apply to emails or any other ESI. When it comes to a test of relevancy, ESI is ESI, whether it’s an email or a Facebook message.

Justice Saxe went on to state that we should not treat social media data different than papers stored in a filing cabinet. He also agrees that a tailored document request should be furnished and in response a “search would be conducted through those documents for responsive relevant documents, and, barring legitimate privilege issues, such responsive relevant documents would be turned over; and if they could not be accessed, an authorization for them would be provided.”

In this day and age with the pervasiveness of social media, counsel should be applying the same due diligence and review of such sites as they do for email. Justice Saxe might agree with me and in my opinion he goes a bit further by stating social media may exist as a protected class of evidence.

“In addition to relying on stare decisis, the majority concludes that there is no need to ‘alter the existing legal framework.’ Little is said about how the existing decisions have unfairly created a rule of judicial protectionism for the digital messages and images created by social networking site users, in contrast to how discovery of tangible documents is treated under the CPLR”

What are your thoughts? Should social media evidence be treated differently than email or other forms of “traditional” ESI?

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