Securing Social Media Admissions: Investigative Strategies, - - PowerPoint PPT Presentation

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Securing Social Media Admissions: Investigative Strategies, Spoliation Warnings, Use of Subpoenas to Obtain Evidence

Finding and Obtaining Admissions by Opponents on Twitter, Instagram, Facebook, Reddit, YouTube and Other Social Media Sites

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, NOVEMBER 30, 2016

Daniel M. Gilleon, Partner, The Gilleon Law Firm, San Diego Jefferson M. Starr , Esq., Lueder Larkin & Hunter, Atlanta Presenting a 90-Minute Encore Presentation of the Webinar with Live, Interactive Q&A

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Securing Social Media Admissions

Investigative Strategies, Spoliation Warnings, Use of Discovery to Obtain Evidence

November 30, 2016

“Think about what people are doing on Facebook today. They’re keeping up with their friends and family, but they’re also building an image and identity for themselves, which in a sense is their brand. They’re connecting with the audience that they want to connect to. It’s almost a disadvantage if you’re not on it now” – Mark Zuckerberg, Facebook, Inc., CEO

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• Step 1: Locating Social Media
• Facebook
• Twitter
• Instagram
• Snapchat
• Vine
• Yik Yak
• Venmo/PayPal
• Online Dating Sites or Apps
• Fitness Apps with Social Components (many of these

post through Facebook)

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Facebook: the Granddaddy of Social Media

• Over 1.7 billion users worldwide
• Allows the sharing of personal

information, business information, photographs, videos

• Many other social media applications link

through Facebook, or can be programmed to link through Facebook

• Facebook is the social network courts have

dealt with the most

• “Facebook usage depicts a snapshot of the

user’s relationships and state of mind at the time of the content’s posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D.

• Conn. Oct. 27, 2009)

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Twitter: 140 Characters of Regret

• 313 Million Monthly Active Users
• Twitter allows dissemination of thoughts, ideas,

images and links to a large audience, quickly, and

• ften in a stream of consciousness fashion
• The length of “tweets” is limited to 140

characters

• Users can tweet Videos and Photographs
• Twitter also allows searching by topic (using

#hashtags to identify tweets with a similar subject matter)

• A user’s tweets may be set as public, so anyone

can read them, or they may be private tweets that can only be read by approved other users

• Tweets may express a user’s mental, physical or

emotional state

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• Instagram is a visual social medium allowing users to

post pictures and videos

• 500 million monthly active users (more than Twitter)
• Like Twitter, Instagram uses #hashtag searching to

identify pictures of the same subject matter

• Instagram accounts, like Twitter accounts, may be set

as public or private

Instagram and Snapchat: a Picture is worth 1000 “Likes”

• Snapchat is a photo and video-sharing application known

for the fact the images “disappear” after they are viewed by the recipient

• 150 million users daily
• “Snaps” may be saved if the recipient takes a screenshot of

the photo/video once received or if the user downloads the snap prior to posting

• Users may be public or private
• Snaps may be posted to the “My Story” feature where they

will remain accessible an unlimited number of times for 24-hours.

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Vine/YouTube Reddit

• Vine is an application allowing

users to create and share short video clips

• YouTube allows much longer

video clips

• Information revealed from

these sites could reflect on a party’s mental, physical or emotional state

• Profiles may be public or

private

• Reddit is an online forum for

disseminating news, advice, and anecdotes about a wide variety

• f topics
• Only members can contribute

content, but the site is public

• Members sign up with a

username and all posting history is available under this username

• Because of the wide variety of

topics that Reddit covers, review

• f the postings will be required

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Yik Yak Venmo

• Peer-to-peer payment sites
• Venmo connects people using

Facebook, and transactions are by default public

• Others can see who you are

paying, and for what (if a detailed subject line is given)

• Venmo has already been used by

federal prosecutors to identify proceeds from illegal drug sales. United States v. Brooks, 139 F.

• Supp. 3d 406 (D.C. 2015)
• Began on college campuses,

and was similar to an anonymous Twitter

• Users could post
• bservations to people in

their geographic area about anything that might be a shared experience

• Yik Yak now allows

contributors to have usernames and accounts, which would reveal all posts created by the user, like Reddit usernames

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Online Dating Sites/Apps

• May contain information similar to that

found on Facebook profiles

• May also contain photographs similar to

those posted on Facebook and Instagram

• Personal messages between users can be

likened to Facebook messages. Courts have held that Facebook messages—and social media content in general—which discusses or relates to the claim at issue in the case is discoverable. See e.g., Farley v. Callais & Sons, LLC, 2015 WL 4730729 (E.D. La. Aug. 10, 2015); Ogden

• v. All-State Career Sch., 299 F.R.D. 446

(W.D. Pa. 2014).

• However, discovery from dating sites has

not been tested in courts and judges could determine there is a heightened sense of privacy in these sites

Fitness Apps/Smart Watches

• Especially relevant in personal injury

cases

• FitBit and other fitness trackers
• Discovery from smart watches could

also be requested to show plaintiff’s activity level

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How to Access this Information

• Depending on a party’s privacy settings, much of this information may be publicly available.

Facebook, Twitter, Instagram, Venmo, Vine and YouTube allow you to search by a person’s name (assuming the account is under the party’s real name)

• Identify social media accounts and user names through Interrogatories
• Request the party download his/her own social media data
• Instructions for Facebook, Twitter and Instagram can be found online and are updated from time to time
• Include instructions in Request for Production of Documents
• It may also be worthwhile to include this information in any discovery motions made to the court, so the court understands the

burden of production is minimal. See Appler v. Mead Johnson & Co., LLC, 2015 WL 5615038 (S.D. Ind. Sept. 24, 2015) (“The [profile downloading] process is undeniably simple, and far from burdensome. The process takes a few minutes, and one simply waits for a download to complete. . . [t]here is essentially no cost involved . . . [t]he download comes already separated into categories and files of a user's Profile information.”).

• Courts may limit the categories of downloaded social media data produced. See id. (prohibiting the “family” and “religious

views” sections from being produced)

• Request an in camera review of the social media content
• See, e.g., Lewis v. Bellows Falls Congregation, 2016 WL 589867 (D. Vt. Feb. 11, 2016)
• Courts may also require that the plaintiff “friend” an account set up by the court
• Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)

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• Step 2: Tailoring Discovery to Address Social Media
• Courts are reluctant to let defendants have access to all

social media—they do not want the requesting party to conduct a “fishing expedition” or have a “generalized right to rummage at will through information.” Tompkins

• v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich.

2012).

• However, when the requesting party tailors its discovery

request to information reasonably calculated to lead to the discovery of admissible evidence, courts have been willing to compel responses.

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• Step 2: Tailoring Discovery to Address Social Media
• Limit the time of the request
• EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434-36 (S.D. Ind. 2010)
• Topically narrow the scope of the request
• Identify the social medium/media most likely to lead to

the discovery of admissible evidence

• Understand you may need to compromise to get access

to the information, such as offering a protective order or allowing in camera review

• In Farley v. Callais & Sons, LLC, 2015 WL 4730729 (E.D. La. Aug. 10, 2015), the

court ordered the plaintiff to provide his social media log in information to his attorney, and the court ordered plaintiff’s counsel to determine what content fell into the categories deemed relevant by the court.

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• Common Objections to Social Media
• Parties may argue information posted on social media is

privileged, or protected under a privacy right. However, courts have rejected both of these arguments.

• “Generally, SNS (social networking site) content is neither

privileged nor protected by any right of privacy.” Jewell v. Aaron’s, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013).

• While users can often tailor their privacy settings, users of most

social media are required to acknowledge privacy policies which clearly state that their content may be shared by other people, may be shared with law enforcement, and may be shared with third-party applications.

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• Relevance and Breadth Objections: properly

tailoring your request, as discussed previously, helps guard against relevance and breadth

• bjections
• Relevance: Courts often hold social media content is

discoverable when a party has placed their physical, emotional or mental condition at issue. See, e.g., Tyler v. Southwest Airlines, 2015 WL 4537250 (S.D. Fla. July 27, 2015); Bass v. Miss Porter’s School, 2009 WL 3724968 (D.

• Conn. Oct. 27, 2009).
• Courts have held social media content is discoverable if

it describes or depicts the liability-causing event. See, e.g., Farley, 2015 WL 4730729; Ogden, 299 F.R.D. 446.

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• Relevance and Breadth Objections
• However, for cases where the relevance is not as obvious, the

requesting party must make a “threshold showing that the requested information…[is] reasonably calculated to lead to the discovery of admissible evidence.” Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. Sept. 7, 2012).

• To satisfy the threshold showing of relevancy, some courts

have looked at whether a party was asked how they used social media. See Martin v. Allstate Fire & Casualty Ins. Co., Case ID 1104022438 (Phila. C.P. Dec. 13, 2011).

• Other courts require some publicly-available evidence before

they will compel production of social media content that has privacy settings. See Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) (citing two cases where information from plaintiff’s public profile established the relevance the courts needed before ordering production of private profile content).

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• Relevance and Breadth Objections
• Some courts have rejected the idea parties must provide

some example of public content to compel production of private content. Giachetto v. Patchogue-Medford Union Free School District, 293 F.R.D. 112 (E.D.N.Y. 2012) (holding that requiring proof of relevance before requesting is not required by the FRCP, and requiring public content first would improperly shield discovery from social media users who do not share any information publicly).

• The Gaichetto court used a traditional relevance analysis

and—like the Farley court—required plaintiff’s attorney to review all of plaintiff’s social media content to determine what to produce.

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• Discovery Dispute Letters
• Initial option for handling objections by plaintiff’s counsel
• Provide recent case law and offer some of the tailoring suggestions

mentioned previously

• Set up your Motion to Compel and fee claim
• Motions to Compel
• Use depositions to identify social media and relevance in anticipation
• f a Motion to Compel
• Ask about social media habits in the deposition (e.g., Is it used for

work? Do they post regularly? What sort of content do they post?)

• Emphasize to the court the need for a before and after analysis of social

media to demonstrate how a party’s life has changed since the incident

• Penalties for Non-Compliance
• Courts have ordered the producing parties to sign declarations stating

that all social media content has been provided, and that the producing party is aware they could be subjected to sanctions for destroying or withholding information. Farley, 2015 WL 4730729 at *5.

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• Spoliation Sanctions
• Courts have held that when litigation is reasonably foreseeable,

parties have a responsibility to preserve any unique, relevant

• information. Smith v. Hillshire Brands, 2014 WL 2804188 (D. Kan.

June 20, 2014) (holding that plaintiff’s failure to preserve e-mails was considered spoliation, but choosing to require plaintiff to attempt to recover the e-mails rather than fine him). Plaintiff are

• bviously aware of the litigation before defendants or witnesses.
• Courts have also put the responsibility on attorneys to ensure that

their clients understand the repercussions of deleting any relevant

• content. Painter v. Atwood, 2014 WL 1089694 (D. Nev. Mar. 18,

2014) (ordering an adverse inference sanction for spoliation and rejecting plaintiff’s argument that she was a “22-year-old girl who would not have known better than to delete her Facebook comments” because once she retained counsel, her counsel should have informed her of her duty to preserve.)

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• Spoliation Sanctions
• In Gatto v. United Air Lines, 2013 WL 1285285 (D.N.J. Mar.

25, 2013), plaintiff provided his Facebook login information to defense counsel. Plaintiff later got a notification his account had been accessed from an IP address he was unfamiliar with, and while plaintiff confirmed defense counsel was accessing his account, plaintiff deactivated his account which caused all information to be deleted. The court held that an adverse inference sanction was appropriate as plaintiff failed to preserve relevant evidence.

• In this case, as the court had already determined the

evidence was relevant, the plaintiff’s culpability was less of a factor, since defendant was clearly prejudiced.

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• Spoliation Warning/Litigation Hold Letters
• Most courts require some degree of culpability before

imposing sanctions (dismissal or adverse inference sanctions are both available) for spoliation—unless, like in Gatto—the evidence lost is known to be relevant

• Sending a litigation hold letter to your clients ensures

they are aware of their obligations and you may be able to avoid a situation like Painter

• This also gives you an opportunity to tell your client to

switch all social media to private, in case your judge takes the Romano “public content” threshold approach to social media discovery

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• Pre-Trial Uses of Social Media Information
• Information obtained can be used in settlement

negotiations

• Any information obtained before a deposition can be

brought to the deposition

• Ask the deponent about social media content you have already

flagged to explore content in depth and authenticate for trial

• Establish posted content is from a relevant time period and not

a “throwback” (#tbt = “Throwback Thursday”)

• Any information discovered after the deposition can

accompany a Request for Admission to the party

• Attach the content in question
• Ask the plaintiff to confirm dates, activities and locations

represented by the content at issue

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Plaintiff in a personal injury case complaining of 9 of 10 knee pain with activity had extensive hiking pictures on her Instagram account. Some of the admissions sought by defense counsel included:

• “Please admit the photographs attached

hereto as Exhibit S were taken subsequent to the motor vehicle accident forming the basis of your Complaint.”

• “Please admit at least one of the

photographs attached hereto as Exhibit S depicts you climbing rocks.”

• “Please admit the photograph attached

hereto as Exhibit T depicts you running up a hill.”

• “Please admit ‘suicides’ are an exercise

drill where one runs as fast as they can.” 26

This plaintiff was in a car accident on December 9, 2014. She claimed daily headaches in addition to 10 of 10 neck, shoulder, and back pain for at least four months. Despite her weakened physical, mental and emotional state, plaintiff continued to tweet frequently— including anticipatory tweets about having sex with her boyfriend. Plaintiff also had multiple tweets of photographs and messages describing intense workouts despite claiming in her deposition she only conducted light cardio workouts.

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To obtain your Twitter archive, go to the “Settings” area and look for the new “Your Twitter archive” feature. A link will be emailed to you that leads to a page within Twitter where you can complete the download. After clicking download, a ZIP file will be

• downloaded. When you open the file, a readme file with

instructions will appear. To create a zip file containing your profile, please sign on to your Facebook account and click the downward facing arrow he top right corner of your Facebook page. Select "Settings" from the drop-down menu that appears. On the newly opened screen, select "Download a copy of your Facebook data." Follow the on-screen prompts and provide your Facebook password to start the download

• process. Facebook will compile a zip file and email a

notification to you with a link allowing you to download the Facebook file. Photographs contained on or electronically tagged to your Facebook webpage, must be downloaded

• individually. To do this, you must open each picture

individually, right click on the picture and save it on a CD

• r USB drive.

To download a copy of your Instagram account, please visit http://instaport.met/export and sign into the Instagram account. Follow the prompts to authorize access to the account’s

• information. Under “export options,” download all photographs

and select “include videos as well.” A .ZIP file titled “Instagram____” will be downloaded with the date of the download.

Download Instructions

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Thank You

Jefferson M. Starr

Lueder Larkin & Hunter 3535 Piedmont Road Building 14, Suite 410 Atlanta, GA 30305 404-480-4028 jstarr@luederlaw.com

Daniel M. Gilleon

The Gilleon Law Firm 1320 Columbia Street, San Diego, CA 92101 619-702-8623 dmg@gilleonlawfirm.com

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