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Can you get the other side's damaging Facebook posts into evidence? How do you make sure they don't vanish at a click of the "delete" key? Here's a look at emerging principles and best practices in this fast-moving area of law.
A prep school in the Miami area fails to renew its principal's employment contract, and he responds with an age discrimination suit claiming he was fired inappropriately. He settles for $150,000, of which slightly more than half, $80,000, is a payment that must be surrendered if he or his wife breaches confidentiality.
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Mark C. Palmer, Bryan M. Sims, Peter M. LaSorsa, Jerome E. Larkin, and Dio U. Davi were speakers at the ISBA's "Social Media in Litigation" program, presented live in Chicago on April 4 and available free online to ISBA members at http://isba.fastcle.com (you'll find it listed by title among the On-Demand Seminars). Topics include preservation of social media evidence, ethical issues raised by social media, and admitting Facebook evidence.
As their daughter was involved with the suit, the former principal and his wife tell her they have settled and are happy with the result. The daughter almost immediately gets onto Facebook to share the news that her parents have won the case and crows the school "is now officially paying for my vacation to Europe this summer. SUCK IT."
This news travels forth from her more than 1,000 Facebook friends and at some point it reaches the ears of school officials that confidentiality has been breached. Not because the daughter broadcast the news on Facebook per se, but because her parents told her what had happened, in violation of the confidentiality agreement. The Facebook posting just became the school's evidence.
"While it was not itself a breach, it later did prove, because the community got word of this" that confidentiality had been breached, says Mark C. Palmer of Champaign-based Evans, Froehlich, Beth & Chamley, Ltd., one of the presenters at a half-day "Social Media in Litigation" conference sponsored by the ISBA in Chicago on April 4. "The breach was telling the daughter…'Yes, it's been settled.' And then the Facebook posting provided the evidence of the breach."
Palmer notes two key takeaways from the result: "Obviously, in a confidentiality agreement you need to be careful of the exact language you use and who and how that confidentiality could be contained to different parties, such as your immediate family members and so on," he says, adding wryly, "More important, never, ever tell a teenager something you don't want ending up on several social media outlets. Never."
It's no kidding around that the proliferation of social media during the past decade since Facebook's founding has raised a multitude of new issues related to the use of social media posts in litigation - what steps you should take to preserve social media evidence, what discovery techniques are available, and how to get it successfully admitted into evidence. While courts are still sorting out the details, some basic principles and best practices are emerging.
The challenges of preserving social media evidence
The 'perfect preservation letter.' When an attorney suspects the contents of the opposing party's social media accounts might be needed for discovery, the first step is to send out a preservation-of-evidence letter to the opposing counsel as soon as possible, says Peter LaSorsa, a Mapleton-based practitioner, who also presented on April 4. You can use a standard lawyerly letter for other attorneys, but if you're sending one to an unrepresented party, make sure you're crystal clear.
"Make it in language that later on, they can't go into court and say, 'I didn't understand it. I don't know what preservation of evidence is,'" he says. "Spell it out so a high-schooler can understand it. It's the old [saying], 'Know your audience.'"
Sharon Nelson, president of Virginia-based digital forensics and information security firm Sensei Enterprises, who presented at a similar forum March 28 at the ABA Tech Show, recommends that attorneys download a guidebook called "The Perfect Preservation Letter" written by Craig Ball, a computer forensic analyst and former trial lawyer (see "Resources" sidebar).
In the guidebook, Ball notes that preservation letters are intended to remind opponents to preserve evidence but also to serve as "the linchpin of a subsequent claim for spoliation, helping to establish bad faith and conscious disregard of the duty to preserve relevant evidence."
LaSorsa sends out such a letter any time he sends a demand. "Even before anything is filed, in the same envelope," he says. "So there can be no mistake what I want saved."
Warning clients not to delete. You should also take great care to properly counsel clients about the need to preserve social media and other electronic evidence, Palmer says. "With a simple click, social media content can be edited and deleted," he says. "While underlying electronic data may still exist containing the deleted content, retrieval may be difficult and costly, [if it's even] possible."
For that reason, he adds, "Litigants have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the court may impose sanctions on an offending party that has breached this duty."
A litigation hold is considered to be in effect when litigation or regulatory action is pending - or when one is reasonably anticipated, Nelson says. "The devil is in [how you define] 'reasonably anticipated,'" she says. "If you have had somebody write you a letter [saying] that they're going to sue you, you can assume litigation is coming. If your spinach is making people ill and sending them to the hospital, you can assume legal trouble. People can say, 'You reasonably should have known.'"
Plaintiffs often don't preserve their own evidence, and plaintiffs' attorneys should know that it's a good practice to send a preservation letter to their clients, Nelson says. "There have been sanctions given by judges, and adverse influence instructions, to the effect that what is missing is [damaging]," she says of social media evidence that can't be reconstructed.
Judges' have become less tolerant of the loss of such evidence as social media has become more commonplace, Nelson says. "They're more stringent than they once were," she says.
Attorneys and clients should treat potential social media evidence with the same caution as any other type, says Bryan Sims, a Naperville-based practitioner who also presented at the ISBA forum. "If it's relevant, you can't go destroy it - in this case, delete it - in the same way you couldn't take all your records from a transaction and shred them," he says. "What happens is, people get in trouble, they panic because they've got a Facebook page, and they take it down and delete everything that was ever on it. That's never going to end well."
Social media discovery strategy and tactics
Scope of social media discovery. Once you've sent the letter to the other side, LaSorsa says, think first about what you're trying to prove and whether you really need social media evidence for your case. "A lot of times, you might have to go through a huge expense [to obtain the evidence], and do you really even need to do that?" he asks. "At the end of the day, if you have some other way of proving what you need, do you want to go down that road? You may have problems, especially if it's been deleted."
Even if you think you do need social media evidence, asking for everything in a person's Facebook account is not likely to be received well by the opposing litigant or the court. Sims suggests finding out what you can from the portion of a litigant's social media information that he or she has made publicly available, then tailoring discovery requests based on that research. "If you see something [useful], then obviously you can send a more targeted discovery request with respect to information about that," he says. "The more focused you are, the more likely you are to have success."
Should you subpoena Facebook? Serving a subpoena to an actual provider like Facebook is almost never the best way to get access to social media posts. Nelson notes that the federal Stored Communications Act, which has been upheld in multiple court decisions, bars attorneys in civil cases from getting the actual social media content directly from providers, although they might be able to get dates and times of postings or other potentially useful metadata.
A better way to get it: make a request upon the user. "Typically it will be released to that person," she says. "Their attorney is going to review it first, [to make sure the data turned over] is relevant. You can't go fishing through somebody's social media site." (And don't friend a witness or party to get access to otherwise private portions of their Facebook or other social media pages. See the "Resources" sidebar for links to articles that say more about this.)
Making printouts of social media postings. Though many lawyers print posts and other information off of social media sites, Nelson and LaSorsa caution against it. One needs to be able to authenticate that information, Nelson says, and none of the metadata - about when something was posted, or when it might have been edited, for example - comes with a printout. She recommends programs like Snagit or Camtasia to electronically capture and authenticate social media or other communications. "Fewer and fewer judges are admitting [printouts] because there's no metadata."
"By the time discovery gets started, that Facebook page could be long gone," LaSorsa says. "How are you going to prove [who authored it]? You could make a Facebook page look like [it belongs to] anybody. So a printout could be bogus. If you print out a Facebook page, that's all you're left with, is a paper document."
Getting social media admitted into evidence
Authentication. Once you've obtained the social media evidence you need, think about how you'll get it admitted. Authentication is the first step, Palmer says, as it would be with any evidence (a 2012 IBJ article treated authentication in depth - see sidebar). "It is important to not let technology distract you from the standards of proper foundation, namely how can one satisfy authentication, or identification, sufficient to support a finding that the evidence is what the proponent claims it is," he says.
But electronic communication presents an evidentiary challenge not common to in-person or telephone conversations, Palmer notes. "Technology has created a foundation issue of showing who was on the other end of the 'line,' whether text message, e-mail, instant message, Tweet, Facebook posting, and on and on," he says. "Circumstantial evidence of access to an account, computer, or device may be one method. Embedded GPS location metadata or even cell tower pinging may be others."
You can attempt to identify the author's writing style, Palmer says. This can include "the use of abbreviations, symbols, punctuation, capitalization, salutations, signoffs, etc.," he says. "It's almost like 'modern day handwriting.'"
Nelson, who was speaking to a national audience, suggests that attorneys carefully read Rule 901 of the Federal Rules of Evidence, which governs authentication of evidence and says it can be done with circumstantial evidence that reflects the evidence's content. Illinois attorneys should further consult Rule 901 of the Illinois Rules of Evidence, which is similar to its federal counterpart. Nelson recommends a 2013 article by Judge Paul Grimm as a great place to get details (see sidebar). She also noted that he "godfather of all cases" on authentication, even though it involved e-mail rather than social media, is Lorraine vs. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007).
'The basic rules are the same.' Sims suggests that attorneys try to determine what they want admitted in advance of a trial. Overall he doesn't see much difference in getting social media evidence admitted than evidence from any other source. "The fact that it's social media doesn't give it some sort of special status, good or bad, in terms of admissibility," he says. "The basic rules are the same regardless of what you want to get admitted: You have to demonstrate to the judge that the evidence is relevant, authentic, and not subject to exclusion because it's hearsay."
Attorneys sometimes get "hung up" on the authentication piece but need to keep in mind that judges don't need to be convinced beyond any reasonable doubt. "If the opposing party says, 'I didn't post that,' but a bunch of posts before or afterward are from this person, it's good circumstantial evidence," he says. "It's the same analysis as with any other piece of evidence.… Is there something here that would demonstrate that the judge would believe the person I say wrote this [actually wrote it]?"
Ed Finkel is an Evanston-based freelance writer.
The following articles are in the IBJ archive.
These resources were recommended by Virginia-based digital forensics expert Sharon Nelson.
The following papers were prepared by Stacie L. Hanson of the Peoria office of Heyl, Royster, Voelker & Allen as part of their annual claims-handling seminars.