Update on Social Media-Related Discovery and Potential Ethical Constraints
Building a Case with Information on Social Media Accounts
As an update to our recent article on the importance of social media-related discovery, the guiding principal remains what is “material and necessary” to the defense of the litigation. Once the defendant has jumped that hurdle, the court will then have to determine whether the account holders’ rights to privacy outweigh the defendants’ rights to view and/or duplicate the material that was posted.
Obviously the defendant will argue that the purpose for posting on a social media website is the sharing of whatever is being posted, thus overcoming the presumed right to privacy, thereby permitting the discovery. There remains, however, the possibility that the court may limit the discovery process to avoid a “fishing expedition.”
Therefore, it is imperative that the defendant establish a factual predicate for the discovery request that identifies relevant information in the plaintiff’s social media posts that specifically contradicts or conflicts with plaintiff’s claims in the lawsuit, such as alleged physical restrictions, disability, losses and similar claims. The argument that could be raised, and that has been adopted by the courts, is that there “is a reasonable likelihood that the private portions of the site may contain further evidence such as information with regard to the plaintiff’s activities and enjoyment of life all of which are material and relevant to the defense of the action.” Romano v. Steelcase, Inc., 30 Misc. 3d 2126 (Sup. Ct. Suffolk Co. 2010).
It is more difficult, however, to leverage social media in claims that involve emotional or mental distress-type damages since a singular posting that may reflect a mood or emotion on a particular day may not be reflective of an overall mood or feeling. Therefore, discovery under these types of claimed damages may be much more restrictive.
Discovery demands seeking social media should be tailored to the particular claims of the plaintiff and not a general or broad-based demand. Further, during the deposition of the plaintiff, inquiry must be made about whether the plaintiff posts to a social media account regarding his/her physical activity or the lawsuit. Defense counsel should also inquire whether anyone else has access to the account (to prevent a claim that someone else may have posted to the account and that the posts are not the plaintiff’s).
Another tool that should be utilized is the service of a notice to preserve social media sites and pages since deleted or archived posts may become the subject of court-ordered discovery. Jenkins v. TD Bank(Sup. Ct., Nassau Co. 2013).
Is it Ethical to Review Social Media Accounts?
On a side note, the ethicality of reviewing an adversary’s social media account has been called into question. An ethics opinion issued by the New York State Bar Association advises that it would be permissible to access and view the public social network pages of an adverse party for potential impeachment material. However, neither the attorney nor his/her agent may “friend” the party or direct a third person to do so.
Warning: Some social media sites will advise a member when someone has viewed his/her page. Under those circumstances, the communication to the member may be considered as improper form of communication to the represented party, which must be avoided at all costs.
Search Social Websites with Caution
A thorough social media search may lead to useful information that may contradict or dispute various claims by a plaintiff in a lawsuit. However, the attorney and/or agent must be very careful to avoid the various minefields and pitfalls that they may encounter during the course of the social media search to make sure that any information obtained may be used at trial and to avoid the possibility of sanctions or even a suspension of the attorney’s license to practice law.