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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.
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. 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. 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.  “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).  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.
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.
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”?Continue Reading
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.Continue Reading
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.Continue Reading
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.Continue Reading
The case arose from an oral licensing agreement between artist Buckley Crispin, Plaintiff, and Christian Audigier and companies (famously associated with the clothing line Ed Hardy), Defendants. Plaintiff alleged that Defendant violated the terms of an oral license by failing to put Plaintiff’s logo on his artwork and by using his artwork on items that were outside the scope of the license. Defendants served subpoenas duces tecum on four third-party websites including Facebook, Myspace, Black Market Art Company, and Media Temple seeking Plaintiff’s communications, sales information and basic subscriber information. The magistrate judge, below, denied Plaintiff’s motion to quash the subpoenas.Continue Reading
We often hear that we should be careful about what we post on the internet. But no matter how many times we hear this good advice, it seems like we have all posted something on the internet that we later regret. Unfortunately, the internet is not a forgiving place. And these unwanted internet posts can haunt an individual and result in serious consequences.Continue Reading
When are trade secrets no longer allowed to be kept secret? According to the Southern District of New York, when you try to obtain a preliminary injunction and temporary restraining order in federal court you also appear to waive your right to trade secrets.Continue Reading