With over one billion members, Facebook is a public information repository for individuals and companies around the globe. For many individuals, Facebook is where they post information about events happening in their lives, their thoughts about topical issues, pictures and videos. In this new age of social media prevalence, the content stored on sites, such as Facebook, should be coveted by litigants as sources of information that might pertain to the issues in their lawsuit. This article will discuss examples of how social media content is being used and admitted as evidence in litigation and some useful archiving tools that will help lawyers discover social media data.
Relevance and Admissibility
A person’s social media content and activities can be probative of important issues in a lawsuit. For example, where a plaintiff puts his or her emotional well-being at issue when asserting claims of sexual harassment or discrimination, some courts have found that “Facebook usage depicts a snapshot of the user's relationships and state of mind at the time of the content’s posting.” (Reid v. Ingerman Smith LLP, CV 2012-0307 ILG MDG, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012.) “Whether electronically stored and dissipated on the Internet or not, ‘anything that a person says or does might in some theoretical sense be reflective of [his or her] emotional state.’” (Id.)
In a case involving emotional distress, photographs posted on a social media site were relevant to damages regarding pain and suffering, both physical and emotional. In Quagliarello v. Dewees, the court ruled that the defendants could show up to three pictures of the plaintiff from a social media website if she testified on direct examination regarding her emotional distress after the incident alleged in the lawsuit. (CIV.A. 09-4870, 2011 WL 3438090 (E.D. PA. Aug. 4, 2011.) The plaintiff then would have the opportunity to rebut the photographic evidence during redirect examination by introducing up to three additional social media photographs from the same time period.
For purposes of admissibility into evidence, social media evidence can be authenticated without testimony from the author of the content. In People v. Valdez, the trial court admitted evidence of a Myspace page that was asserted to belong to the defendant. (Cal. App. 4th 1429, 1434-37 (2011).) On appeal, the appellate court stated “like any other material fact, the authenticity of a document may be established by circumstantial evidence.” (Id. at 1435.) Despite not having testimony from defendant authenticating the Myspace page, the appellate court found that a reasonable trier of fact could conclude from postings of personal photographs, communications and details, that the social media profile belonged to the defendant. (Id. at 1437.)
When making discovery requests for social media data, attorneys may be faced with objections from the responding party on the grounds that the information is “not reasonably accessible.” The responding party may presume that such an objection is proper because social media content is voluminous and scattered throughout a third-party website. The responding party may have sound legal basis for making such an objection since California Code of Civil Procedure § 2031.210(d) provides that a responding party may object to discovery of electronically-stored information (ESI) on the ground that the source is “not reasonably accessible” because of “undue burden or expense.” However, free archiving tools are now available on Facebook and Twitter that assist in the collecting and compiling of social media content. Pointing out the existence of this archiving software to the responding party can undercut their objections to produce such information based on undue burden or undue expense.
After years of spending valuable resources to respond to requests for copies of information contained in Facebook profiles, the company now allows its users to download their entire profile – including an activity log, timeline postings, comments and other interactions. The process begins with going to the Facebook Account Settings page and then clicking on a link labeled “Download a copy of your Facebook data.” Next, you will be taken to a new page where you click a button labeled “Download Archive.” Facebook then begins the automated process of gathering and packaging the information. Detailed instructions on downloading information from Facebook can be found on the Facebook website at https://www.facebook.com/help/212802592074644. Once the archiving process is complete, Facebook sends an email to the email address registered with the account. The email includes a link to download the package of data, and now your discovery gun is loaded!
Like Facebook, Twitter now provides a process for any user to download her entire archive of Tweets. This is available by going to the Settings page and scrolling down to the bottom to the subheading “Your Twitter archive.” Click on the button “Request your archive,” and like Facebook, an email will be sent to the account holder’s email address with a link to download your archive from Twitter. Once you have the Twitter archive, you can view the Tweets by month, or search the archive to find Tweets with certain words, phrases, hashtags or @usernames.
With knowledge of these archiving resources, you should have more ammunition for rebutting objections that requests for production of Facebook and Twitter content creates an undue burden or undue expense. Then, you are off to the races to procure social media evidence that can be used for motions and at trial.