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The Facebook Effect on Litigation and Civil Discovery

By: L. David Russell

Los Angeles Daily Journal (June 28, 2011)

Social media Web sites have forever changed the way we communicate, share information, and document our everyday lives. These sites, including Face- book, MySpace, YouTube, and Wikipedia, allow users to voluntarily share information with others. Over the past few years, mil- lions of people have flocked to these sites to do exactly that. Consider this: Facebook currently has 630 million users worldwide; Flickr hosts more than 5 billion images; Wikipedia has 17 million articles with 91,000 active contributors; and people are “tweeting” at an average rate of 4 million tweets per hour. See Jake Hird, “20+ Mind- Blowing Social Media Statistics: One Year Later,” Econsultancy Digital Marketing Blog (March 25, 2011, 12:56 PM), http:// media-statistics-one-year-later.

Along with all its promises, social media has brought about new challenges, including how we view and order our public and private lives. As former U.S. Rep. Anthony Weiner’s recent woes demonstrate, it only takes a second for a negligent user of social media to make a public spectacle of his most intimate moments. Even for more careful users of social media, however, there is a chance that private communications and moments stored on social media sites can forcibly be made public by way of civil discovery. Use of evidence obtained from social media sites is quickly grow- ing. In 2009, Facebook reported that it was receiving subpoenas and other orders compelling the production of information at a rate of 10 to 20 per day. Samyuktha Krishnappa, “Twitter takes WikiLeaks Subpoena Public; Google, Facebook Under Scrutiny,” International Business Times, Jan. 10, 2011, http://www.ibtimes. com/articles/99141/20110110/twitter- takes-wikileaks-subpoena-public-google- facebook-under-scrutiny.htm.

So far, courts have struggled to deal with the rapid ascension of social media in the context of civil discovery. The main problem is that while social media is a product of the previous decade, the primary law that courts have applied to social media providers is the Stored Communications Act (SCA), which was passed in 1986. At its core, the SCA “prevents ‘providers’ of communication services from divulging private communications to certain entities and individuals.” Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965, 971- 72 (C.D. Cal. 2010). To determine what is discoverable under the SCA, judges, many of whom are not technology experts, analogize social-media services to the out- dated technology for which the SCA was designed. Unsurprisingly, this approach has produced disparate and uneven results, and in many cases, raised more questions than answers.

To begin with, it is unclear what, if any, social media communications fall under the SCA. Since the SCA’s primary purpose is to provide “privacy protection” to certain communications, it generally protects private communications and is inapposite to public communications or to communications where the author has consented to their disclosure. The complication with

social media is that the line between private and public is oftentimes unclear.

So far, courts have erred on the side of protection. For example, are Facebook “wall” postings private and, thus, protected, given that these postings are freely avail- able to the user’s friends? What if the user has hundreds or even thousands of friends? At least one court has held that Facebook wall postings are protected under the SCA and that “the number of users who can view the stored message[s] has no legal significance.” Crispin, 717 F. Supp. 2d at 990. Another illustration: Is a YouTube video a private communication when users mark the video “private” after uploading it onto YouTube, but agree to a Terms of Use and Privacy Policy that permits YouTube to distribute user submissions and disclaims liability for disclosure of user submissions? A court recently reviewed this very issue and found that the SCA applies and pre- vents content-based disclosure of private videos. Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256, 265 (S.D.N.Y. 2008).

Secondly, when the SCA applies, it is unclear whether all civil discovery is automatically barred. Under the SCA, “no cause of action shall lie...for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.” 18 U.S.C. Section 2703(e) (2006). Interpreting this language within the overall statutory scheme, some courts have found that the term “subpoena” within the context of the SCA only covers government subpoenas and not civil subpoenas duces tecum.

At least one court, however, has permitted civil discovery of SCA-protected information by finding such information discoverable under document requests is- sued under Federal Rule of Civil Procedure 34. See Flagg v. City of Detroit, 252 F.R.D. 346, 352-53 (E.D. Mich. 2008). In Flagg, the court found that because the defendant could theoretically permit the third-party service provider to disclose the communications at issue, these communications were within the defendant’s possession, custody, or control. Thus, simple document requests might succeed where third-party subpoenas have failed. Instead of subpoena- ing a third-party service provider, a party could potentially make its opponent get that information as long as the opponent is

entitled to request it.

In an age where a user may not always be aware of what information is stored, this novel and expansive reading of “possession, custody, and control” could have unintended consequences. Under the hold- ing in Flagg, people might be in “possession, custody, or control” of information that they never knew was stored. After all, it was only recently that iPhone users learned that their device was tracking their locations and storing data about their whereabouts without their knowledge or explicit permission. Similarly, it is not always clear to users what information social media sites are storing about them and their online activities. Nonetheless, users may be forced to consent to the disclosure of this information — even if they did not know this information was being stored in the first place.

Even when civil discovery of information from social media Web sites is permitted, that often has led only to more complications. For example, practitioners have had problems properly authenticating images and information obtained from social media sites. Courts, perhaps swayed by well-publicized cases where individuals fake their identities on these sites, have been particularly hesitant to admit this type of evidence. One court went so far as to preclude photos

printed from a MySpace account, which purportedly depicted the murder victim making hand gestures and wearing gang- affiliated apparel. The court reasoned that “[i]n light of the ability to ‘photo shop,’ edit photographs on the computer, defendant could not authenticate the photographs.” People v. Lenihan, 911 N.Y.S.2d 588, 592 (N.Y. Sup. Ct. 2010). Of course, the same can be said of all digital images, all of which can easily be manipulated with standard photo-editing software.

Lawyers also have had similar problems with printouts of users’ social media ac- counts. The Maryland Court of Appeals recently overturned a conviction based on the erroneous admission of a printed MySpace page entered into evidence. Grif- fin v. State of Md., 2011 Md. LEXIS 226, *3 (Md. Apr. 28, 2011). In that case, the prosecution attempted to authenticate the printout of a witness’ MySpace account with the testimony of the investigator who had printed the profile and the fact that the account included a photo of the witness and her birth date. The court held that this was insufficient to tie the account and comments made on the page to the witness.

Drawing on case law from other jurisdictions, the Griffin court suggested several ways that evidence obtained from social networking sites may be authenticated, including asking the purported creator if she created the profile and authored the postings in question; searching the computer of the alleged profile owner to determine whether the computer was used to originate the social networking profile and postings in question; and obtaining information directly from the social networking Web site linking the profile or postings to the purported user or author.

As social media sites continue to grow in popularity, it is essential to consider how this technology will affect courts, practitioners, and the public. Certainly the law in this area will harmonize as more courts have the opportunity to review these cases. However, as this technology develops, everyone should reexamine the role social media Web sites play in our lives and the policy behind these rules.

—By L. David Russell, William Pao, and Christina Avedissan, attorneys at Jenner & Block LLP

© 2011 Daily Journal Corporation.



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