LITIGATION: Discovering Social Media


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 preserved.

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.

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