a. Discovery How-to’s and Pointers
The conventional ways to obtain information in divorce proceedings are well known: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. Typically, interrogatories are aimed at gathering initial information and facts of the case that the opposing party could not recall without reference to particular documents. Interrogatories in conjunction with requests for production, then serve to produce the traditional sources of information for a divorce attorney. Staples include:
- Bank Statements;
- Individual Tax Returns;
- Corporate or Partnership Tax Returns;
- Mortgage Statements;
- Rental or Lease Agreements; and
- Telephone Records.
These documents can then be used in conjunction with depositions to “pin” down the testimony of the opposing party for potential impeachment at trial, or simply to see how the opposing party will respond under oath to particular questions.
Now, however, we have a broader array of materials with which we can target these traditional discovery tools. These new materials can be used for the same purposes, but they often pose new challenges. They include, but are not limited to:
- Home and Work Computers;
- Cell Phones and Tablets;
- Flash Drives and External Hard Drives;
- Cloud Storage/Vendor’s Servers; and
- Social Media.
Many Computer and E-discovery issues are covered by federal statutes and the Federal Rules of Civil Procedure. However, it is also vital to check local rules of civil procedure in your jurisdiction. Below are various applicable Federal Rules of Civil Procedure that sometimes mirror state rules:
Fed. R. Civ. P. 1001(1) – Writings and recordings includes computers and photographic systems.
Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.
Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email and social media. These and other miscellaneous information can be found on: hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smart phones and virtually any electronic source.
Home and Work Computers
The overarching federal statute is 18 U.S.C. §1030 or the Computer Fraud and Abuse Statute. Section 1030 prohibits (a) intentionally accessing a computer without authorization from any protected computer if the conduct involved an interstate or foreign communication; (b) knowingly and with intent to defraud, accessing a protected computer without authorization, or exceeding authorized access, and by means of such conduct furthering the intended fraud; (c) intentionally accessing a protected computer without authorization, and as a result of such conduct, causing damage. A protected computer is any computer used in interstate or foreign commerce or communication, which is obviously quite broad, but the key in family law cases is typically “use without authorization.” Wiretapping statutes and Electronic Communication Privacy Act also come in to play with email discovery and will be discussed later.
State Courts have been all over the place on the balance between privacy and discoverability. Below are a few examples:
Parker v. Coletti, 2013 Pa. Dist. & Cnty. Dec. LEXIS 72 (Pa. County Ct. 2013): A husband and wife (who were both attorneys) were going through a divorce, and the husband requested to inspect and copy the hard drive of the wife’s Dell computer, which was considered martial property. The wife objected and the matter was assigned to a Special Discovery Master. The Master found the discovery of the hard drive to be permissible. Additionally, the Master prohibited any privileged information between the wife and her attorney not to be disclosed, and the husband was prohibited from discovering information, on the hard drive, after the parties’ date of separation. The wife appealed. The court concluded the hard drive is a martial property, therefore discoverable, but affirmed the Master’s limits on protecting the privileged information between the wife and her attorney.
Rosenberg v. Rosenberg, No. C4-01-1148, 2002 WL 15649 (Minn. Ct. App. Jan. 8, 2002): Wife believed there could be evidence on the husband’s computer of hidden assets, but otherwise, she had no real evidence of concealment. The court found the wife’s requests for authorizations to access the husband’s business computer to be invasive and based purely on conjecture. Thus, the appellate court upheld the denial of the discovery requests.
Byrne v. Byrne, 650 N.Y.S.2d 499 (N.Y. Sup. Ct. 1996): Husband’s laptop computer was owned by his employer, but was also used for his personal finances unrelated to his employment. The wife took the computer to her lawyer to have its memory copied. The real issue was not who possessed the computer, but who had access to the computer’s memory. The court concluded that the computer, commonly located in the marital home, was akin to a file cabinet within the marital home. Clearly, the wife could have access to the contents of a file cabinet left in the marital residence. Likewise, she should have access to the contents of the computer.
Stafford v. Stafford, 641 A.2d 348 (Vt. 1993): Wife found a file on the family computer called “My List,” which was similar to a notebook she had found detailing husband’s sexual encounters with various women. The notebook disappeared before trial, but the court found the file on the family computer to be sufficient to identify notebook as a list of adulterous encounters.
State v. Appleby, 2002 WL 1613716 (Del. Super. Ct. July 18, 2002): Here, husband and wife routinely commingled computer hardware. Despite wife having possession at time of trial, it was “theirs” in every sense.
The balance then between privacy and discovery appear to revolve around, first, whether it was marital property or was used by others in the home. The proponent is likely to encounter greater resistance if the information was password protected. Second, if it was not marital or readily used by others in the home, is there some credible reason to suspect relevant evidence will be discovered? Case law seems to indicate that you must have more than a mere suspicion, but it cannot hurt to try because on appeal it is often all about the standard of review. Frequently, an appellate court will be resistant to state that the trial court abused its discretion.
Tablets, Smart Phones and Cell Phones
In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover’s wife who was intercepting phone conversations and recording voicemail messages.
The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing. This is because most carriers routinely delete text messages within a day or two. However, forensic experts can often pull deleted text messages sent or received long ago from the device itself.
Outside of intercepting telephone conversations or voicemails, smart phone data and tablets akin to a computer.
Flash Drives and External Hard Drives
Knowing the technology can be crucial in E-discovery so that you know what and how to retrieve data. Both flash drives and external hard drives are back up storage mechanisms for a user’s computer. Generally, each may be used to store all of the types of data found on a traditional computer or internal hard drive, including: word processor documents, spreadsheets, photos, and videos. An external hard drive may be set up to automatically back up any files saved on the main computer and may be worth looking at if you suspect something is missing from the main drive. An external hard drive may be composed of one of many types of memory, but typically are a hard disk drive like those found in a traditional computer. External hard drives with the capacities of up to a massive 8TB of storage (1TB equaling approximately 140 million pages of text) can now be purchased readily by consumers.
A hard disk drive records data by magnetizing a thin magnetic material on a spinning disk. It may be important to know what type of drive is used in a computer or externally because when you delete a file in windows it does not remove the magnetic coding from the disk. Deleting merely removes the location of that file from the directory with which an application would access it. The file itself may remain there undisturbed until a later application saves something over it.
The flash drive is probably the biggest competitor of traditional hard disk drives. Originally invented in 1980, they have rapidly gained in popularity for their portability and durability. Flash drives unlike their hard drive counter parts, do not have any moving parts and can retain data without a power source. They typically connect to a computer through a USB port and boast an impressive capacity of up to 2TB in 2013. Flash drives, like a hard drive are often re-writable, and memory deletion typically operates in a fashion similar to hard disk drives.
Similar to a computer, a spouse may have a right access to an external hard drive or flash drive used in the home, but not if such items are discoverable materials under Fed.R.Civ.P. 34. If planning to offer into evidence, you still must ensure it is relevant, authentic, non-hearsay or meeting an exception and that its probative value outweighs any prejudice.
While over the past decade courts have to some extent learned to cope with electronic discovery from computers, cell phones, and extra storage drives, cloud services present a few new challenges. The National Institute of Science and Technology defines Cloud computing as “a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” Essentially, the cloud allows for internet based services to provide users with remote access to software, resources, and information stored elsewhere. The computer systems and servers storing the data or applications are often operated by a third party, not the person or company using the resources.
Cloud computing has its advantages for users, and disadvantages for litigants. Cloud computing is growing rapidly for good reason. It substantially minimizes information technology (IT) costs, offers potentially limitless storage capacity, does not require self-management, can be tailored to individual needs and provides instant mobile access. It is the limitless capacity and lack of self-management that poses the challenges for litigants. While computer hard drives now contain vastly more data than ever before, creating even more items of evidence to sort through, cloud storage only exacerbates that difficulty. The particularly interesting aspect is the lack of direct control the cloud user typically has over his or her stored data.
Traditionally, companies stored and owned their own data located at specifically constructed data centers. Even if the company or individual leased the space, they at least owned the hardware and data itself. Cloud services change this to where the user no longer owns the hardware they operate. Cloud services follow three basic service models. The most general model is the Software as a Service (SaaS) model where an individual pays only for existing applications in the cloud. The user has no control over how data is stored or altered within the system. For lawyers, a familiar example of this is Westlaw or LexisNexis. The second model is the Platform as a Service (PaaS) model, which gives the user the ability to install and tailor their own software applications in the cloud. The user still, though, has no control over the servers or storage provided.
Finally, the Infrastructure as a Service (IaaS) model offers clients the most control. There the user rents access to the cloud’s servers and hardware, but may use its own operating system and software that enables the cloud to work for the user. Importantly, the service provider may still re-locate data from one physical location to another.
The ability of the cloud provider to re-locate data becomes important in looking at Fed. R.Civ.P. 34(a), which defines discoverable information as “in the responding party’s possession, custody, or control.” Federal courts have held that data in the possession of a third party to be within Rule 34(a) so long as the party “has the right, authority, or practical ability to obtain the documents from a non-party to the action. The problem that generally arises though is locating and preserving the data for pending litigation. Third party control, through a cloud, may leave the user subject to sanctions when the data has been moved, altered, or is otherwise inaccessible.
In discovery, the responding party has the burden to preserve, identify, and collect ESI stored in the cloud. While the comments to Fed. R. Civ. P. 37(e) states: “A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case,” and it also states that the duty to preserve evidence attaches when the party reasonably anticipates litigation. For those operating under any cloud model but the IaaS model, a responding litigant will not be able to prevent any auto-delete functions associated with the cloud. Important data may also be lost if the service provider chooses to terminate cloud services provided to the user. For instance, Amazon’s 2012 service agreement provided that termination of the agreement terminated all rights to any of the data stored in the cloud.
This inability to retrieve ESI from the cloud may trigger sanctions for the responding party. Court may impose sanctions for spoliation under Rule 37 when they deem it just. The standard seems to vary by circuit, as some will grant a sanction if the responding party is culpable in any way, which is if they have any responsibility or control. Other courts require a showing of bad faith.
Under either standard, it is important that you know the cloud structure and operating methods that your client employs. Having a basic knowledge of your provider will help you negotiate the service agreement to begin with, locate data when the time arises, and ensure that the data is unaltered when it comes time to produce. Moreover, it will enable you to create a prospective litigation plan that may save you time and money in the future.
If you are the party requesting data from the cloud, a basic idea of how the cloud operates will also be useful. It may inform you that the targeted party does have significant control over their data as they are employing an IaaS cloud model or that the documents or the meta-data contained in the documents you have received may have been altered in the cloud. It may even tip you off that other documents may have been deleted, perhaps innocently, while contained in the cloud. Either way, a rudimentary knowledge of the opposition’s system will only help your discovery efforts.
Simply put, what to look for depends on what type of case you have and what types of allegations you are seeking to prove or disprove. Knowledge of what you need to prove your point is crucial because of the volumes of potential ESI out there. Not only will a broad meandering search waste a lot of your client’s money, but also such attempts are likely to be characterized as an impermissible fishing expedition by the court.
Let traditional sources inform your use of new electronic sources. If you would typically subpoena bank records and credit card statements you might consider examining a computer’s spreadsheets for financial information. Or, perhaps you would consider looking for emails to or from known business associates. If you are looking to prove some sort of conduct between the parties, you might start with emails and text messages. Communications might provide for abundant examples of verbal abuse or promises broken. If allegations of substance abuse or adultery have been leveled, you might consider mining for geolocation data that can show husband or wife was at the bar instead of the soccer game. Finally, consider often-overlooked aspects of social media, like status updates and friends lists. The uses for ESI are as broad, if not broader, than the traditional sources of information.
This means you even need to be efficient once you locate your ESI source. Careful selection of keyword searches can be crucial to obtaining information relevant to your case. Through the various social networking web pages valuable information can be obtained regarding adverse parties, key players in your case, and expert and non-expert witnesses. Keyword searches can be performed in various search engines, including Google, Yahoo or Bing. Research can also be performed on Westlaw. Through these vehicles, you can often find invaluable information including contact information, employment information, social information, and habits of various parties in your case.
There are some important basics to know about key word searching. For instance, it can sometimes be wise to focus on items most likely to be discarded or overwritten first, like emails and instant messages. When doing so, and in searching in general, consider the Who, What, When, Where, Why, and How of your case. Be sure to remember assistants or those who may handle your target’s files or emails. Additionally, if at all possible, remember to discuss with the custodian of the system possible abbreviations used by the party in question. Try to focus on important dates that might help sift through potentially voluminous amounts of information. Finally, do not be over confident in your search abilities based on Google, Yahoo, Bing or even Westlaw experience. Sifting through data on a computer can be an entirely different animal, so here are a few additional suggestions to fashion queries:
- Seek input from key parties and witnesses;
- Examine what you’ve got and the tools you will use;
- Communicate and collaborate;
- Incorporate likely misspellings, abbreviations and synonyms;
- Filter and duplicate first;
- Tweak the queries and retest; and
- Check the discards.
If the opposing party is somewhat cunning or deceptive, you might need to partake in a somewhat more detailed examination.
b. How to Get Smartphone and Social Media Evidence Admitted into Evidence
A common objection to social media evidence is found under Fed. R. Evid. 901 that the material is not authentic.
In that case you can look to Fed. R. Evid. 904(b)(1), authentication through the testimony of a witness with knowledge that the evidence is what it is claimed to be. Electronic communications-including email, text message, or social media message can be authenticated through the testimony of the author (including participant in online chat) or 904(b)(4) permits authentication using circumstantial evidence, in conjunction with the appearance, contents, substance, internal patterns, or other distinctive characteristics.
Essentially, a witness testifies that an email, text message or social media message, originated from the known email address or social media page of the purported sender. Most courts will find this to be sufficient. For instance, in United States v. Lanzon, the court upheld the admission of transcripts of an instant messaging conversation an undercover agent had with a man attempting to solicit sex acts from a minor. The defendant argued that copying the instant messaging conversations into a word document altered the conversation such that they could not be authenticated. The court rejected this under Fed. R. Evid. 901(b)(1) stating the “proponent need only present enough evidence ‘to make out a prima facie case that the proffered evidence is what it purports to be.”
However, some courts have been more stringent. For example, in Griffin v. Maryland, a MySpace printout was admitted into evidence as it contained the birth date, photo, number of children, and nickname of the defendant. The trial court stated that “the characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety, including authenticating an exhibit by showing that it came from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him.” The Maryland Court of Appeals would eventually reverse the decision of the trial court because the “facts known peculiarly to him” could have easily been duplicated by another user in this instance. Consistent with this is People v. Lenihan, where the mother of the defendant in a murder case downloaded photos from the government witness’s MySpace page four days after the shooting. The court found the defendant’s foundation improper in light of the ability to photo shop, edit photographs, and the fact that the defendant did not know who took the photographs or who uploaded them.
Likewise, in Commonwealth v. Williams, evidence was admitted from the defendant’s MySpace account. The prosecution was able to provide testimony from witnesses that inculpatory messages had been sent from the defendant’s account. However, the Massachusetts Supreme Court found the trial court’s admission of the evidence improper, because there had been no showing that only the defendant had access to the account. The court noted that just because a person received a phone call from a person claiming to be person A that did not actually mean that the person they spoke with was person A.
When it comes to admission of social media evidence, it appears that the key issue for the court is a fear of fabrication. While courts have struggled with this, some have begun to consider this a factual issue for the jury. In People v. Clevenstine, another Internet sexual assault case, the state presented testimony from a computer forensic analyst and a legal compliance officer from MySpace. The legal compliance officer was able to provide testimony that satisfied the Griffin court’s concern that the messages originated from the MySpace account, and he satisfied the Williams court’s concern about access and use of the profile. The court stated that under Fed. R. Evid. 104(b) the “trier of fact could weigh the reliability of the MySpace evidence against the possibility that an imposter generated the material in question.”
With regard to email, some courts will require authentication from the sender, some from the recipient, and some will accept authentication from either. For instance, in Network Alliance Group L.L.C. v. Cable & Wireless USA, Inc., inconsistencies within the alleged e-mail correspondence suggested that the correspondence was not authentic. The date stamp for one of the email messages listed a date well into the future and an incorrect day of the week for that date.
Situations like Network Alliance, where all facts surrounding a correspondence are disputed, have led to alternative methods of authenticating ESI. One of these approaches has been to take judicial notice of other commonly known characteristics of computers. Check local authority as some courts interpret authentication requirements tougher than others and some will simply not accept it if another more traditional form is readily available.
Most recently, in Campbell v. State, the court upheld the admission of Facebook messages as being authenticated, in a domestic assault case. The court asserted that Facebook present authentication concerns that are twofold. “First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate, See, Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Second, because a person may gain access to another person’s account by obtaining the user’s name and password, the person viewing communication on or from an account profile cannot be certain that the author is in fact the profile owner.
The court in Tienda v. State held that the appropriate method for authenticating electronic evidence will often depend on the nature of the evidence. In Campbell, the court held that the Facebook messages provide circumstantial evidence supporting that the boyfriend assaulted his girlfriend, therefore supporting the lower court’s ruling.
To summarize, there are several methods of authentication for social media evidence. The most obvious is to ask the owner/creator of the social media profile if they added the questioned content under Fed. R. Evid. 901(b)(1). Second, you can always formulate requests for admission with a printout of the desired posts attached. Third, you can bring in computer or social media experts to testify, as was done in Clevenstine under 901(b)(3) or maybe even 901(b)(9). Some have also used Fed. R. Evid. 901(b)(4) Distinctive Circumstances or Characteristics, which parallels the initial reasoning applied by the lower court in Griffin. Finally, you can use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating social media evidence, the practitioner should be prepared to meet the most exacting standards.
Authentication of ESI typically involves two concerns. The first, and often the biggest concern for the court, is the identity of the alleged declarant discussed above. Also though, one must show that the proffered evidence of the alleged communication is an accurate representation of what was posted. In the 1960’s courts were somewhat skeptical of computer printouts. Indeed, 1981 ALR suggested that when introducing computerized business records the foundation should include: (1) the reliability of the computer equipment used to keep the records and produce the printout; (2) the manner in which the basic data was initially entered into the computerized record-keeping system; (3) the entrance of the data in the regular course of business; (4) the entrance of the data within a reasonable time after the events recorded by persons having personal knowledge of the events; (5) the measures taken to insure the accuracy of the data as entered; (6) the method of storing the data and the precautions taken to prevent its loss while in storage; (7) the reliability of the computer programs used to process the data; (8) the measures taken to verify the accuracy of the programs; and (9) the time and mode of preparation of the printout.
Recently, however, courts have not had great difficulty in accepting that a print out or screen shot is an accurate representation of various online communications. For example, in United States v. Catrabran, the defendant contended that the computer printouts used against him were inaccurate, and he was able to show inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence. Indeed, one court has even stated that computer printouts “have a prima facie aura of reliability.” Increasingly, the only bar to the admission of ESI is finding the applicable hearsay exception.
In J.T. v. Anbari, a Missouri case, a party introduced into evidence a print out of posts a juror had made during a jury trial. Although the juror did nothing in violation of the trial court’s order, this case shows the use of printouts of social media posts in Missouri.
With regard to email, printouts typically contain the same identifiable information that is found in the email itself. The email address may incorporate the target’s name, the signature block may be unique to the sender, and the conversation may detail characteristics unique to the defendant. Typically, having a witness testify as to the whether the printout is a fair an accurate depiction of the email, highlighting various identifiable characteristics is enough for admission.
Web pages, instant messaging, and chat rooms have been handled similarly. In Firehouse Restaurant Group, Inc. v. Scurmont LLC, the court considered the authenticity of several printouts from various websites in a trademark dispute. The plaintiff asserted that the printouts could not be properly authenticated. The defendant argued that most of the printouts contained dates and web addresses on them and “courts may consider ‘circumstantial indicia of authenticity’ such as the presence of the date and identifying web address for purposes of authentication.” The court concluded that these distinctive characteristics were sufficient to make a prima facie showing of authenticity. Similarly, United States v. Tank, found that chat room transcripts and printouts could be authenticated by the testimony of one of the participants in the online chat.
Printouts of social media have been a little bit tougher for courts to handle. Similar to online chat rooms, individuals create a user id under a pseudonym or nickname. This, particularly in the realm of social media, has created authentication issues. However, most of these again revolve around the identity of the sender, not the accuracy of a computer printout or screen shot. Do not forget that the opposing party may even be willing to stipulate to the authenticity of the social media and the printouts.
In LaLonde v. LaLonde, the Court of Appeals of Kentucky considered pictures posted on Facebook when deciding a child custody case. The husband sought to introduce photos from Facebook, to show his wife’s alcoholism. The wife argued that the photographs could not be authenticated “because Facebook allows anyone to post pictures and then ‘tag’ or identify the people in the pictures.” However, the court reasoned that “there is nothing within the law that requires her permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires her permission when she was ‘tagged’ or identified as a person in those pictures.” Accordingly, the wife’s testimony that she was the person depicted in the photographs and that the photographs accurately reflected that she was drinking alcohol, was sufficient to meet the standard of authentication.
Ultimately, social media evidence, electronic evidence, and all forms of evidence are subject to the possibility of alteration. The use of computer printouts for ESI has largely become widely accepted and your greatest concern should be proving authorship of any alleged communication.
c. Case Law and Sample Scenarios
Quite often, social media evidence and electronic evidence in general is the icing on the cake for divorce attorneys in divorce litigation. For instance, in Atkinson v. Atkinson, Mother sought to rebut Daughter’s emancipation by invoking the exception for diagnosed health problems citing Daughter’s alleged depression. To disprove the claim, Father offered social media evidence of daughter drinking and partying at college. While the trial court excluded the evidence as irrelevant, Father was allowed to make an offer of proof depicting Daughter’s exploits.
In Martinelli v. Mitchell, social media evidence on Facebook was admitted in an order of protection proceeding. In that case, Martinelli presented evidence to the trial court regarding “text messages, phone calls, and Facebook” communication that was civil at first, but escalated to “name calling, insults, threatening to spit in my face if she ever saw me.” On appeal, the trial court’s judgment granting the order of protection was affirmed.
The friends and social contacts an individual has can also become a ripe issue. In State v. Hill, a criminal defendant convicted of rape, sodomy and child molestation, sought a new trial based on the fact the mother of the victim was Facebook friends with one of the jurors. Ultimately, the conviction was affirmed on appeal because the juror testified that he did not use his Facebook often and his interaction with mother was extremely limited. However, who an individual has social media contact with still can be a relevant issue to watch.
There are numerous other cases outside of Missouri that are worth examining as well. For instance, in In re Marriage of Bates, the court cited an email from the wife to the husband saying, “You will never feel so much pain when I’m done with you… I’m going to embarrass [sic] you make the kids hate you.” This supported an evaluator’s finding of alienation and the court upheld an award of sole legal custody to the father. For the purposes of awarding sole physical custody, mother’s posts on Facebook stating that the children “have a really bad father” were relevant as oldest child could clearly access Facebook. At trial, the wife claimed the emails were influenced by her medications and stress; and on appeal, the court rejected her subsequent assertions that the emails had been altered.
Highlighting the ever-changing view of courts on social media evidence, Romano v. Steelcase, which allowed the discovery of an entire Facebook profile was recently disagreed with by the Federal Eastern District of in New York, Giacchetto v. Patchogue-Medford Union Free School District. In Giacchetto, the federal judge examining claims both under federal and state law held that only the social media postings, which referenced events alleged in the teacher’s complaint, were relevant and discoverable.
Social media content can be helpful in unexpected ways, like proving the size of a business. In Safdar v. AFW, Inc., the plaintiff filed suit against former employer to recover unpaid overtime wages under the Fair Labor and Standards Act. The cause was submitted on affidavit, and plaintiff used print outs from defendant’s Facebook page to corroborate his story regarding the size of defendant’s business. The defendant’s Facebook page listed nine stores, the same number cited in the plaintiff’s affidavit, whereas the defendant had claimed just two stores in his own affidavit.
Additionally, in Blade v. Harrah’s Entertainment, Inc., the plaintiff in an age discrimination case was able to use LinkedIn to show that he was indeed an employee of Harrah’s. His supervisor had testified in court that neither he nor the plaintiff were employees of Harrah’s, but after the supervisor’s LinkedIn profile listed Harrah’s as his employer, the court found the supervisor to lack credibility. At least one court has held that threats posted by a defendant on a social networking website were “sent” to the recipient.
Social media evidence can also prove to be the tipping point even when alone it is insufficient for the judge to rule in your favor. In Leenhouts v. Leenhouts, a wife placed a motion for default on husband’s desk in the marital home. Husband, several days later, placed messages on Facebook to the tune of “you thought you had me” followed by several expletives. While the court was hesitant to use the post as proof of service, husband’s testimony, that he could not recall who his Facebook post was directed at, damaged his credibility to extent that the court believed he had received service.
The Stored Communications Act (“SCA”) can also come into play in a variety of electronic discovery settings. An “electronic communication service” (“ECS”) is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” A “remote computing service” (“RCS”) is defined as one that provides “computer storage or processing services by means of an electronic communications system.” ECS providers are prevented from knowingly disclosing the contents of an electronic communication while in electronic storage by that service. A provider of a remote computing service is permitted to release the contents of a communication to the addressee or intended recipient, but cannot disclose electronic communications carried or maintained by that service solely for the purpose of providing storage or computer processing. Several courts have held that data held by an ECS are exempt from the reach of subpoenas in civil actions.
While not considered in Romano v. Steelcase, in Crispin v. Christian Audigier, Inc., the court applied the Electronic Stored Communications Act to Facebook in quashing the portion of subpoena that applied to communications in parts of the profile the user had selected as private. The court held that general postings viewable to the public on Twitter or Facebook were discoverable, but private messages where the website was acting as an ECS were not.
SCA also complicates the acquisition of location data from an ECS or RCS service provider. A company might be an ECS under the SCA even without providing communication services to the public. But customers can obtain their own data from an ECS and RCS. Some courts have ordered customers who are civil litigants to request data from ECSs and RCSs that could not be subpoenaed directly by the non-customer or opposing party under the SCA.
In Garcia v. City of Laredo, Tex., the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone. These were text messages and photographs. Similarly, in Lazette v. Kulmatycki, the plaintiff’s supervisor proceeded to read previously read personal, but not deleted emails, on a former employee’s blackberry. The employee thought the device had been cleansed of personal communications, but still did not have an action under the SCA as to opened, but not deleted e-mail, because it was the server that was the protected storage device, not the smart phone.
In White v. White, the wife hired a computer expert to find and copy her husband’s e-mails that were stored on the hard drive of the computer in the family home. The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage. They also determined that the access was not without authorization.