Privacy

To Shred or Not To Shred

“Follow the document policy!” Those were the words repeated many a time by Arthur Anderson to Enron’s employees during the pending SEC investigation. Those simple words led to a jury’s finding Anderson guilty of witness tampering through the act of persuading his employees to destroy relevant documents. The jury found Anderson guilty of violating 18 U.S.C. §§ 1512(b)(2)(A) and (B), which makes it a crime to “knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person . . . with intent to . . . cause . . . ” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The Fifth Circuit Court of Appeals upheld this decision. However, the Supreme Court reversed this decision determining that the jury instructions were improper. The Court focused on “what it means to ‘knowingly . . . corruptly persuad[e]’ another person ‘with intent to ... cause’ that person to ‘withhold’ documents from, or ‘alter’ documents for use in, an ‘official proceeding.’” The Court held that this language required a proof of consciousness of wrongdoing. The Court additionally found that the jury instructions provided by the district court did not adequately outline the requirement for the consciousness of wrongdoing. Besides not including the proper intent, the district court also misapplied the “corruptly” definition by leaving out the word “dishonestly” and inputting “impede” in place of “subvert or undermine.” “These changes were significant. No longer was any type of “dishonest[y]” necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d] the Government's fact-finding ability.” In addition, the Court noted that jury instructions did not require any finding of a nexus between the “‘persua[sion]’ to destroy documents and any particular proceeding.” Even though it is illegal to directly persuade someone to destroy documents in the face of a pending litigation, the Court wanted to emphasize that there is a requirement of knowledge about both a pending proceeding and the materiality of the documents to be found guilty of violating the witness tampering statute. Overall, because of the inaccurate jury instructions, the Court here reversed the decision so another jury could hear the evidence along with proper instructions in making their decision. Though this decision seems to make some room to get out of the witness tampering statute, it is always best to have a proper document retention policy and to not persuade any form of destruction.

How Can You Check if Your Insurance Customer is Faking an Injury? Get Evidence Before Requesting Access to Their Social Media!

A growing trend in insurance disputes is a demand for insurers to have access to the claimant’s social media content.  In January 2013, the District of Montana had to consider whether to compel a woman to produce all of her social media photos.  The court did not grant this request and the decision serves as a good example of what is, or is not, an effective way to request this information. In Keller, one of the plaintiffs claimed she injured her head, neck, and back in an automobile accident when the vehicle she was driving was struck from behind. Her mother also suffered injuries in the accident.  At the time of the accident, they were insured under an automobile liability policy issued by the defendant. The plaintiffs made a claim for uninsured motorist benefits under the policy. The defendant, under Federal Rule 37, moved for an order compelling the plaintiffs to respond to discovery requests for the production of their social network site content.  The defendant’s rationale for the request was the plaintiffs alleged a “host of physical and emotional injuries.”  In respect to the mother, the defendant argued “there is no good reason for her to shield information that might shed light on her or her daughter's injuries.”  This is the language of the request: Request for Production No. 18: Please produce a full printout of all of Plaintiff [driver]’s social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. Request for Production No. 19: Please produce a full printout of all of Plaintiff’s [mother's] social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. As you can imagine, the court felt these requests were overbroad.  It is well settled that social media content is discoverable, but the requestor must make a threshold showing that publicly available information on those sites undermines the plaintiff’s claims.  The defendant did not come forward with any evidence that the content of either of the plaintiffs’ public postings in any way undermined their claims in this case. Absent such a showing, the defendant was not entitled to delve carte blanche into the nonpublic sections of the laintiffs' social networking accounts, let alone all of them. This case should serve as a lesson to other insurance litigants.  You should only request access to social media accounts if you can make a threshold showing that the social media content will be relevant and hold admissible evidence.  Otherwise you will rightly be admonished for undergoing a “fishing expedition” and your requests will be promptly denied.

You Might Want to Rethink Your Next Fishing Expedition in Tennessee

The scope of discovery, as stated in Federal Rule 26, has been construed very broadly in its relevancy standard.  Any and all requesting parties can seek production of documents and information as long as “the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”  And while this standard has the tendency of having the producing parties provide all requested, non-privileged documents within their control, some courts have determined there are exceptions. In Potts v. Dollar Tree Stores, Inc., the Middle District of Tennessee determined that requests for private Facebook pages require the rquesting party must meet a threshold showing that the information sought is likely to be found on the social media site and lead to admissible evidence. In Potts, the plaintiff filed suit against her former employer, Dollar Tree Stores, Inc., claiming harassment and discrimination based on the plaintiff’s race, a hostile work environment, and retaliation.  After discovery disputes, the defendant filed a motion to compel claiming that the plaintiff did not produce a number of requested items and documents, including: Facebook data, any and all computer and storage devices used during and after the plaintiff’s employment, tax returns, any relevant documents in online email accounts, as well as other items.  The plaintiff’s response to the defendant’s request asserted that she produced what documents were in her possession, that the defendant’s request for the physical production of her computer was unduly burdensome, and that the defendant is not entitled to access to her private Facebook account due to other court holdings requiring a threshold showing that the Facebook page would undermine the producing party’s claim(s). Since, the Sixth Circuit Court of Appeals had not yet ruled on requesting parties’ access to private Facebook pages, the Middle District of Tennessee relied on outside court rulings in Thompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) and McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S.2d 614 (N.Y.App. Div. 2010).  Courts in Michigan and New York held that, while Facebook accounts are not considered privileged or necessarily protected by notions of privacy, requesting parties should not be allowed to go on fishing expeditions in hopes of finding relevant information to their case.  In resolving the issue of rummaging for information, the courts held that a requesting party seeking access to private Facebook accounts must meet a threshold showing that the social media page will likely lead to admissible evidence.  Adopting the idea of a “threshold showing,” the Potts court determined that the defendant fell short in showing that the information it gathered from the plaintiff’s public Facebook page would lead to admissible evidence if the plaintiff had given more access. The court determined that the defendant was entitled to certain documents in the defendant’s motion to compel that Plaintiff had not yet produced in discovery, but accepted the plaintiff’s assertion that she no longer had certain requested documents that would not have been relevant to the case.  When dealing with the physical production of the plaintiff’s computer, the court resolved that an agreed neutral party would search for relevant documents on the plaintiff’s computer, using both parties’ agreed-upon word search.  As for the the defendant seeking attorneys’ fees incurred in preparing the motion to compel, the court ruled that Federal Rule 26(b)(2) gives discretion to the court in relieving any undue burdens on responding parties during discovery.  The court did not require the plaintiff to pay the defendant’s attorneys’ fees due to the plaintiff having reasonable objections to the defendant’s discovery requests.

How Can You Check if Your Insurance Customer is Faking an Injury? Get Evidence Before Requesting Access to Their Social Media!

A growing trend in insurance disputes is a demand for insurers to have access to the claimant’s social media content. In January 2013, the District of Montana had to consider whether to compel a woman to produce all of her social media photos. The court did not grant this request and the decision serves as a good example of what is, or is not, an effective way to request this information. One plaintiff claimed she injured her head, neck, and back in an automobile accident when the vehicle she was driving was struck from behind. Her mother also suffered injuries in the accident. At the time of the accident, they were insured under an automobile liability policy issued by the defendant. The plaintiffs made a claim for uninsured motorist benefits under the policy. The defendant moved under Fed.R.Civ.P. 37 for an order compelling the plaintiffs to respond to discovery requests for the production of their social network site content. The defendant’s rationale for the request was the plaintiffs alleged a “host of physical and emotional injuries.” In respect to the mother, Defendant argued “there is no good reason for her to shield information that might shed light on her or her daughter's injuries.” The request stated as follows: Request for Production No. 18: Please produce a full printout of all of Plaintiff [driver]’s social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. Request for Production No. 19: Please produce a full printout of all of Plaintiff’s [mother's] so-cial media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and Meet-Me from August 26, 2008 to the present. As you can imagine, the court felt these requests were overbroad. It is well settled that social media content is discoverable, but the requestor must make a threshold showing that publicly available information on those sites undermines the plaintiff’s claims. The defendant did not come forward with any evidence that the content of either of the plaintiffs' public postings in any way undermined their claims in this case. Absent such a showing, the defendant was not entitled to delve carte blanche into any of the nonpublic sections of plaintiffs' social networking accounts, let alone all of them. This case should serve as a lesson to other insurance litigants. You should only request access to social media accounts if you can make a threshold showing that the social media content will be relevant and hold admissible evidence. Otherwise you will rightly be admonished for undergoing a “fishing expedition” and your requests will be promptly denied.

Court Denies Motion to Compel Forensic Computer Examination Based on Proportionality Grounds

A common problem in e-Discovery is what to do when your adversary is withholding relevant information.  An even worse problem is when you know your adversary is withholding relevant information, but you are not precisely certain what that information is.  This was the problem for the defendant in NOLA Spice Designs, LLC v. Haydel Enterprises, Inc. who sought—but was ultimately denied—a forensic examination of the plaintiff’s computers. In NOLA Spice Designs, a trademark infringement case, the defendant filed a motion to compel the plaintiff to submit its computers to forensic examinations.[1]  The plaintiff challenged the motion by arguing that the forensic examinations failed the proportionality requirement of Federal Rule of Civil Procedure 26(b)(2).  This rule prevents a party from requesting discovery when “the burden or expense of the proposed discovery outweighs its likely benefit.”  In the context of forensic computer examinations, the court explained such an examination will not be permitted when the request is overly broad and the connection between the computer and claims are “unduly vague or unsubstantiated in nature.”  Although the court noted that forensic computer examinations are not uncommon in civil discovery, the court clarified that a mere suspicion that your adversary is dishonestly withholding information is an insufficient basis to order a forensic computer examination. The defendant in NOLA Spice Designs requested the forensic computer examination on the basis that it “has good reasons to believe that something in Plaintiff’s statements is not true” and “that is has suspected all along that its opponents have records that they refuse to produce.”  The court characterized the defendant’s reasons as the precise type of skepticism and unwarranted suspicion of dishonesty that are insufficient to warrant an invasive computer forensic examination. Moving forward, litigants should be mindful that courts may be sensitive to confidentiality and privacy concerns when overly broad discovery is requested.  Although electronic discovery permits litigants to exchange massive amount of information, that exchange is still subject to the traditional rules of discovery, such as proportionality.  In order to combat the hurdle of proportionality, a party who is suspicious that an opponent is withholding information should limit its discovery requests to the specific information that is suspected of being withheld.[2]  If the requesting party obtains some information, then it will at least have a reasonable basis to proceed with broader discovery requests because the party can prove to the court that the opposing party has not been forthright.  This puts the requesting party in a far greater position than merely seeking an intrusive computer forensic examination with no basis other than mere suspicion of dishonest activity. Helvidius Priscus, a Seton Hall University School of Law graduate (class of 2014), served on the executive board of the Seton Hall Law Review and was a member of the Interscholastic Moot Court Board.  Helvidius now clerks for a Justice on the Supreme Court of New Jersey.  [1] “Computer forensics is the practice of collecting, analyzing and reporting on digital information in a way that is legally admissible.”  Forensic ctrl, Introduction to Computer Forensics, http://forensiccontrol.com/resources/beginners-guide-computer-forensics/ (last visited Feb. 12, 2014). [2] Of course, it is difficult to ask for something if you are not sure what exactly you are missing.  Nonetheless, the court in NOLA Spice Designs made clear that asking for everything is not the way to go.  Starting with small and specific discovery requests (even if they are shots in the dark) may be the better choice because a court is unlikely to find that such requests fail the proportionality requirement.

Fishing for Relevancy

Make sure that when you request electronic discovery information, it is relevant to the case at hand. The mere fact that information from the request could lead to admissible evidence is not enough to make the request relevant. In Salvato v. Miley, the father of plaintiff and decedent, Joshua Salvato, brought suit on behalf of his son for wrongful death.  Salvato passed away due to a gunshot wound to his abdomen.  Salvato’s father alleged that two police officers used excessive force during the questionable incident and failed to administer adequate medical treatment. After the plaintiff’s first set of interrogatories, one of the defendant officers, Deputy Brown, objected to the discovery requests that asked for personal cell phone numbers, e-mail accounts, social media accounts, and any online memberships, including the corresponding usernames and passwords and any correspondence sent or received via those accounts. Brown objected to these interrogatory requests for four reasons:  1) the requests sought confidential information protected by Fla. Stat. § 119.071(4); 2) the requests sought irrelevant and immaterial information that is not reasonably calculated to lead to admissible information and constitutes a fishing expedition; 3) the requests were overly broad with respect to their time, scope, and effect while presenting Brown with annoyance, embarrassment, and oppression; and 4) the requests invaded Brown’s right to privacy under Article I, Section 23 of the Florida Constitution.  Salvato, 2013 WL 2712206 at *2. The court did not address the arguments involving the Florida statute or constitution.  Instead, the court focused on the relevancy of the plaintiff’s requests, finding that the plaintiff had “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.”  Salvato, 2013 WL 2712206 at *2 (quoting Tompkins v. Detriot Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012). The plaintiff’s only response was that the information “could include admissions against interest, and could certainly lead to the discovery of admissible evidence.”  The court did not agree, and instead found that the plaintiff must have the “threshold burden of showing that the requested discovery is relevant.”  Here, the information the plaintiff sought was too much of a “fishing expedition” to be deemed relevant.

Fishin’ on Facebook: The Discoverability of Private Facebook Information

There is no question we live in a world consumed by social media where “Tweeting,” “Instagramming,” and “Facebooking” are commonplace. More specifically, people feel compelled to share intimate details, photographs and video of their lives with their “friends” on social media sites, such as Facebook. In the world of litigation, the question becomes “how should courts treat Facebook accounts for the purpose of discovery”?

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New Jersey Passes Social Media Privacy Bill

Everyone enjoys their privacy, even legislators! Privacy bills are becoming ubiquitous in state legislatures across the country. With the increased use of social media in and around the workplace, states are legislating to protect the dueling interests of employers and employees. Ten states, including New Jersey, passed laws that restrict employers from accessing the social media accounts of employees.

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ATTENTION! Reporter’s Privilege is NOT a Laughing Matter

Discovery rules are very important in litigation, but in specific circumstances they do not apply. A reporter has the right and discretion to keep information private that was given to them in confidence. The court decision in Hatfill took this privilege very seriously and did not allow the plaintiff access to the privileged information.

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Protecting Confidential Information Vital to Keep Civil Discovery Functioning

Litigation involving minors and schools can always be a difficult situation for all parties, and issues of confidentiality will often arise.  In order to help the judicial system function effectively, blanket protective orders will often be necessary, but judges must also make sure that they are not harming the plaintiff by issuing these orders.

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