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Obtaining Information from Social Networking Sites
By Hedda Litwin, Cyberspace Law Counsel
Would it surprise you to learn that there is potentially more information relevant to your legal cases on social networking sites than any other source? Facebook, the most popular social networking site by far, has an estimated 750 million active users who collectively spend more than 700 billion minutes each month on the site. There are thousands of social networking sites on the Internet, including the ones you are most familiar with – Twitter, MySpace and LinkedIn – as well as online dating sites such as Match.com and JDate.
Users post information on social networking sites that can be used as evidence of credibility, character or habits. Indeed, in Bass v. Miss Porter’s School, 2009 U.S. Dist. LEXIS 99916 (D. Conn.), the district court remarked that one’s Facebook page can provide a snapshot of a user’s relationships and/or state of mind. In that case, chat logs were used to contradict a rape accusation. The alleged victim had engaged in a chat conversation right after the alleged rape took place in which she told the man she had a good time.
Users may also post information in their status updates that could be incriminating. In fact, a website named Openbook indexes all public information posted on Facebook and allows users to keyword search that information. One could search for postings about smoking marijuana, for example.
If we agree that social networking sites may yield relevant information, the issue then is gaining access to that information. In EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010), the court stated that discovery of social networking sites involves the application of basic discovery principles, just in a novel context. The Stored Communications Act (SCA), 18 U.S.C. § 2702(a)(1) and (2), prohibits Internet operators from “knowingly divulging to any person or entity the contents of a communication while in electronic storage…” or “which is carried or maintained on that service.” Accordingly, the SCA provides that Internet operators must have the “lawful consent of the originator or an addressee or intended recipient” before revealing social networking information.
There are several methods for obtaining social networking data; the method you choose will depend on the type of information sought. Basic subscriber information, including the user’s name, email address and other contact information, can be obtained with a subpoena. Note that subscriber information is not difficult to obtain because courts have consistently held that a person lacks a legitimate expectation of privacy in Internet subscriber information. Crispin v. Christian Audiger, Inc., 717 F. Supp. 2d 965 (S.D. Cal. 2010) is an example of such a ruling. To obtain more information, section 2703 of the SCA affords what is referred to commonly as a 2703(d) order (or just a “D order”) and requires specific and articulable facts that the data is relevant and material to the investigation. Without prior notice, a 2703(d) will return only non-content. For example, it will show you the recipient of the message, but not its content, for which you need a 2703(d) order with prior notice. This article will not address the additional methods of using a search warrant or obtaining a wiretap order.
Most social networking sites have privacy settings ranging from communications only accessible by a select group of individuals to communications shared with the public at large. Some courts have looked to these privacy settings when determining whether postings on these sites are admissible. In Dexter v. Dexter, 2007 Ohio App. LEXIS 2388, the appellate court found that a parent seeking custody could not claim an expectation of privacy in publicly accessible writings on MySpace detailing her intent to commence using drugs after the custody proceedings. However, some courts have not found the privacy settings relevant. In Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650 (2010), a New York court held that a social networking user has no reasonable expectation of privacy, notwithstanding her privacy settings, because the sites do not guarantee complete privacy. In this personal injury case, the court found that based on the publicly available information in Romano’s profile, it was reasonable to conclude that the private portions of her profiles would contain more evidence that would be material and relevant to the defense of the action. In deciding whether to allow a party to discover social networking information, courts will look at these factors: 1) whether the content is material and necessary to prove the case; 2) whether there are other means to obtain the content; and 3) whether the requesting party will be at a disadvantage without accessing the content.
In a civil case, you can obtain information from social networking sites through traditional discovery methods, such as issuing a request for production for specific documents or content from a party’s profile. You could also ask for the party’s log-on name and password in an interrogatory or deposition. A third option would be to ask for a court order providing for disclosure and/or in camera review. In Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist, LEXIS 66432 (M.D. Pa.), a case in which Offenback was suing for injuries sustained in an automobile accident, the district court was asked to review Offenback’s Facebook profile for relevant information. The court did find a posting about Offenback’s recent multi-state trip by motorcycle, which was clearly relevant. The court did state, however, that Offenback should have produced the information without the court being involved in the discovery process. In Barnes v. CUS Nashville, Inc., 2010 WL 2265668 (M.D. Tenn.), the court went so far as to offer to provide an in camera review by becoming friends with the party in order to review their private content for relevancy!
One should note that state and local bar associations are starting to address social networking through ethics opinions. In 2010, the New York State Bar issued Opinion #943 concluding that an attorney who represents a client in a pending litigation may access and review the public social network pages of another party to search for potential impeachment material, as long as the attorney does not “friend” the other party or direct a third person to do so. The New York City Bar in Opinion 2010-2, and the San Diego County Bar in Opinion 2011-2, found that an attorney may not attempt to gain access to a social networking site under false pretenses, either directly or through an agent.
Finally, take note that just because social networking sites may contain information about the other parties in your case does not mean you can get unfettered access to their privacy postings. Most recently, a federal magistrate denied a motion to compel production of Facebook records in a personal injury case. In Tompkins v. Detroit Metro Airport, 2012 U.S. Dist. 5749 (E.D. Mich. January 18, 2012), plaintiff Lela Tompkins claimed back injuries from a slip and fall at the airport. The airport argued that Tompkins might be faking her injuries, referencing photos from her public Facebook pages and surveillance photos showing her holding a small dog and pushing a grocery cart. The airport sought to compel production of Tompkins’ entire Facebook account. The district court found the request overbroad and the Facebook data not relevant, since pushing a grocery cart would not be inconsistent with Tompkins’ claims. The court said that had the photos shown her playing golf or lifting heavy packages, the airport would have had a stronger argument. So what’s the take-away? Narrowly tailored discovery requests for social networking data are more likely to be approved by the court and return information relevant to your case.
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