Individuals' willingness to share the details of their lives on social
made has created a new source of evidence that has changed the way the
legal community approaches discovery and the preservation and/or spoilage
of evidence. People turn to their social media profiles to express themselves
openly, candidly and often in a carefree way. There appears to be a pervasive
belief that posts, opinions, and comments are "private" simply
because the user selected an option from their social medial provider
to make content viewable only to a select few. But privacy in a social
media context is not the same as privacy in a court of law. Over the past
few years, courts have provided litigators with broad latitude in discovery
of social media data and some courts have issued sanctions for the destruction
of relevant social media content.
Facebook, Twitter and Instagram, just to name a few, provide a pool of
potential facts to challenge a party's claims or defenses. In transportation
litigation, the communications and content created or shared by a plaintiff
can be invaluable. Facebook, for example, can tell you where someone was,
when, and what they were doing. Instagram, an image driven platform, can
show you Plaintiff's physical condition at a given point in time.
Snapchat can reveal unsuspecting video footage evidencing of a plaintiff's
physical abilities. Given the value of this content to refute claims of
injury or challenge a claimant's credibility, it is important to request
social media records early in the litigation and further demand it be
Platforms that save records include Facebook, Twitter, and LinkedIn. Among
the discoverable content is the identity of social media accounts, usernames,
posts, shares, private messages and communications about issues relevant
to the case. Because the content is accessible to plaintiffs through their
own accounts, they must also produce all documents containing any content
or communications relevant to the issues.
Importantly, relevant social media content from platforms over which the
plaintiff has control can be obtained utilizing existing California discovery
statutes. Similarly, current California law allows the right to demand
that social media content be preserved pursuant to pending litigation.
Protection of this often untapped source of evidence is paramount, and
issuance of discovery demands and specific requests for preservation of
all relevant electronically stored information ("ESI"), including
social media content, is a vital part of preventing spoliation of evidence issues.
Not all social media platforms are created equal, and different approaches
are necessary to secure potential evidence. Some platforms preserve all
content, whereas others are designed to be only temporary custodians.
It is not uncommon for user to delete relevant but unfavorable content
despite pending litigation. Understanding the nature of the different
social media platforms and how to use these tools is key to preserving
and obtaining relevant social media content.
Social media data from temporary content platforms is also obtainable using
the subpoena power. Data on temporary content platforms, such as Snapchat,
Yik Yak, and Erodr, is designed to disappear after its created and viewed.
While a plaintiff cannot access the data from his own account, the provider
can recover the elusive content from its servers. However, because these
platforms were specifically created to be temporary, anonymous, and unreachable,
many will either refuse to produce records or keep content on their servers
for only a short time. One way to potentially preserve this content is
to act quickly in these situations and secure a court order before the
content is lost.
Social media has forever changed the litigation landscape. Understanding
what each platform has to offer and how its content can be used to uncover
a plaintiff's communications, mental state, and physical condition
is essential to litigating in the new millennium.