Discovery of Information on Personal Facebook Profile


From the E-Discovery Law Review Blog:

A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant. Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident.

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.

The entire story can be read here:

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Court Reviews Plaintiff’s Facebook Account to Identify Material Subject to Discovery


Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

From eDiscoverylaw.com

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information containedwithin Plaintiff’s accountsis properly subject to discovery.” Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.” (Plaintiff’s MySpace account was not searched asit hadnot been accessed since November 2008 and Plaintiff could not locatethe log-in information.) The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.” In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

The court closed this opinion with a footnote expressing its “confusion” as to why its assistance was required in this instance and reasoning that because Plaintiff was most familiar with his own account, “it would have been substantially more efficient for Plaintiff to have conducted this initial review and then, if he deemed it warranted, to object to disclosure of some or all of the potentially responsive information.” The court acknowledged that the “scope of discovery into social media sites ‘requires the application of basic discovery principles in a novel context’” and that “the challenge is to ‘define appropriately broad limits … on the discovery ability of social communications,’” but reiterated its point that (subject to a properly narrow request) “it would have been both possible and proper for Plaintiff to have undertaken the initial review of his Facebook account to determine whether it contained responsive information” and to thereafter involve the court if a dispute remained as to whether that information was subject to production.

The full opinion can be see here

Placing a “Computer Illiterate” in charge of eDiscovery is not a winning strategy for the defense


A case that had been decided for the plaintiff years earlier was reopened due to eDiscovery process questions. In the case of Green v. Blitz U.S.A., No. 2:07-CV-372 (TJW), 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), the original attorney for the plaintiff was a plaintiff’s attorney on another case against the same defendant. During discovery for this other trial, the plaintiff’s attorney found out that evidence that should have been turned over for the previous plaintiff’s trial had not been. Because of this fact, the original lawsuit was reopened. In this second trial it was revealed the defendant had placed a single person in charge of electronic discovery for several ongoing cases. The problem with this was the person put in charge of eDiscovery was less than experienced. In fact, it was revealed that the employee “solely responsible for searching for and collecting ESI relevant to litigation between 2004 and 2007 issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents.  In fact, the employee himself stated that he was “about as computer illiterate as they get.”

Making matters worse, some of the information discovered after the close of plaintiff’s case would have easily been identified with a simple word search, as the target words were in the subject line of one of the undisclosed emails specifically discussed by the court.  Also of note, as to the specific email discussed by the court, was the fact that the employee tasked with discovery was a recipient of the email and still failed to disclose it in discovery.  Despite failing to produce relevant material, the defendant made the certification that “full and complete disclosure ha[d] been made in accordance with the Federal Rule’s of Civil Procedure and the Court’s orders.”

The court also discussed defendant’s failure to issue a litigation hold to its employees and its failure to cease rotation of its backup tapes, two other actions expected when litigation is reasonable anticipated.  Accordingly, the court concluded that “it will never be known how much prejudice against the plaintiff was actually caused by the defendant’s failure to preserve documents” and found that sanctions were warranted.

Given the context and type of documents not disclosed, the court found that defendant’s conduct was a willful violation of the Court’s Discovery Order and that plaintiff had been prejudiced as a result. In other words, the original award would have been much higher if the ESI was found and turned over.

I don’t know if the defendant’s counsel choose a totally inexperienced person to run the eDiscovery process was just stupid or was part of a strategy to insure responsive ESI was not found. I think, minus proof of the second, we will have to go with the first explanation.

That being said, litigation hold and eDiscovery is a serious business and should never be taken lightly. Having control of your organization’s ESI is an important responsibility expected by the courts.

Case summary from eDiscoverylaw.com

How do you keep the ESI skeletons out of your closet?


A blog post written by Jim McGann of Index Engines on May 4th zeroed in on an interesting topic; how to keep ESI skeletons out of your corporate closet.

In his post Jim writes: Law firms and corporations alike tend to keep data storage devices well beyond what their compliance requirements or business needs actually dictate.  These so-called “skeletons in the closet” pose a major problem when the entity gets sued or subpoenaed. All that dusty data is suddenly potentially discoverable. Legal counsel can be proactive and initiate responsible handling of this legacy data by defining a new, defensible information governance process.

These skeletons can encompass both old, out of date data as well as the devices the old data is stored on. The risk includes not just the old data that might have content that you would rather not have discovered but also the storage devices that would “read” the old data. An attorney friend of mine related a case he was involved in several years ago where a company in discovery was asked about a filing cabinet in their warehouse that contained hundreds of 8 inch floppy disks. The plaintiff’s attorney asked if those floppy disks could contain data from the time period in question (8 years ago). No one at the company could really answer the question so the plaintiff’s attorney asked for an inventory of the data on those 8 inch floppy disks.

The defendants counsel obviously raised concerns over their ability to actually read the data as well as the cost involved. They argued that the disks drives which could read the 8 inch floppy disks couldn’t be found, that even if they could find the drives, they didn’t have computers with the correct interface to actually look at the data and the software to enable the floppy disks to be read did not exist.

The Judges question to the defendants was obvious; “why do you have a filing cabinet full of hundreds of 8 inch floppy disks if they can’t be read?”

The point of the story is data/information has a life span. 8,9,10 year old data in most cases will not be useful to an organization (unless there are regulatory reasons to keep it) so manage it for as long as its useful to your organization then get rid of it, especially if the technology to utilize it is way out of date.

Spoliation does not require purposeful destruction of evidence


In a recent decision, Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), the court ordered the plaintiff to pay $1,000,000 in monetary sanctions, and ordered plaintiff’s counsel to pay “the costs and attorneys fees incurred in litigating this motion” because the plaintiff’s agent was found (and admitted) to have modified metadata related to relevant source code and had wiped several relevant disks and devices prior to their production. The court found plaintiff’s counsel had participated in “presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders.”

The plaintiff’s counsel did not dispute any of the allegations of misconduct” but instead sought to distance itself from “its own agent, employed for the purposes of pursuing this litigation” and disavowed any “actual knowledge” of wrongdoing. RCG’s counsel similarly disavowed “any personal wrongdoing and any actual knowledge of any wrongdoing, while unequivocally distancing themselves and RCG from [the consultant].”

The court stated; “The imposition of sanctions, however, does not require actual knowledge, but gross negligence or recklessness, i.e., RCG knew or should have known. See Porche v. Oden, 2009 WL 500622, at *7 (N.D.Ill. Feb.27, 2009). Even if this Court were to accept that RCG had no actual knowledge of the evidence destruction and modification that occurred, RCG’s conduct still warrants the imposition of a default judgment. See, e.g., Grochicinski v. Schlossberg, 402 B.R. 825, 842-43 (N.D.Ill.2009) (finding bad faith sufficient to impose default judgment because “[e]ven if Schlossberg did not destroy the files himself, the bankruptcy court found that at the very least Schlossberg acted in ‘reckless disregard’ of his discovery obligations”).

The court went on to reason that “it strains credulity that RCG now claims it had no knowledge of anything [its consultant] was doing and he was just a ‘non-party fact witness’ for whom it bears no responsibility.” The court found that the record reflected that the consultant was “under RCG’s control and was its paid agent,” as evidenced by a myriad of facts laid out by the court.

Accordingly, finding that plaintiff and its counsel “acted in bad faith and with willful disregard for the rules of discovery and this Court’s orders,” the court entered default judgment in favor of defendant and dismissed the claims and defenses of plaintiff. The court also ordered plaintiff to pay sanctions in the amount of $1,000,000 and, for their part in presenting “misleading, false information, materially altered evidence, and willful non-compliance with the Court’s orders,” ordered counsel to “pay the costs and fees incurred in litigating this motion.”

The managing attorneys on either side are responsible to the court to insure the discovery process was done correctly and in the timeframe expected by the court. The argument by RCG that they just didn’t know was seen by the Judge as not meeting their responsibilities. A spoliation finding does not need to be purposeful, grossly negligent will also do.

Beware: Your Facebook Posts Could End Up in Court


Social networking posters beware…your Facebook and other social media accounts may be seen by more than just your friends; in fact, what you post and tweet could become court evidence.

But many of us don’t consider these implications when tweeting and posting. Current employers, potential employers and, yes, even attorneys review social networking sites for information on workers, job candidates and litigants.

Individuals as well as organizations need to carefully consider what they post to these sites. In the personal injury case of McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts, requesting an eDiscovery production of his usernames, log-ins and passwords.

Plaintiff objected, arguing that the information on those sites was confidential.  Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days. Additionally, the court ordered that plaintiff should not take steps to delete or alter the existing information on his social network accounts. The court said:

Specifically addressing the expectation of privacy with regard to Facebook and MySpace, the court found that any such expectation “would be unrealistic.”  The court then analyzed the relevant policies of the two sites, and concluded as to both that, “[w]hen a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.”  Accordingly, the court determined that defendant could not successfully assert that his accounts were confidential.  In so holding, the court also noted the possibility that communications could be disclosed by friends of the account holder with whom the communications were shared.

Organizations need to establish and enforce employee social media policies to lower their risk and better protect their brand. Check out this related blog titled “Companies Need a Social Media Policy” for suggestions on establishing a corporate social media policy. And for all of us posters, bloggers and tweeters, be careful what you say; otherwise, it could be read back to you by an employer or judge.