E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

In the most recent decision to come out of Pennsylvania regarding the discoverability of social media, a Philadelphia judge denied a defendant’s request to gain access to a plaintiff’s Facebook page. 

In Martin v. Allstate Fire and Casualty Co., Case No. 110402438 (C.P. Phila. Dec. 13, 2011), the plaintiff, a pedestrian, was hit by a vehicle driven by a third-party tortfeasor.  The plaintiff collected the policy limit from the third-party’s insurer and then demanded the Uninsured Motorist coverage from her own insurer, the defendant.  During her deposition in October, defense counsel asked the plaintiff if she used Facebook, to which she responded that she did.  Upon asking for her password, defense counsel was met with an immediate objection.  In return, defense counsel filed a Motion to Compel such information.  Counsel for the plaintiff responded in opposition, arguing that any information on the plaintiff’s Facebook is not relevant to her claims or injuries and does not contradict her claims.  In a one-page, single-line Order, Judge Manfredi agreed and denied defendant’s Motion. 

This decision follows a November ruling from Judge Walsh, who determined that information posted on the plaintiff’s Facebook page was relevant and not privileged, and therefore discoverable.  See Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011); see also www.ediscoverylawreview.com/2011/12/articles/opinions/post-at-your-own-risk-pennsylvania-court-permits-discovery-of-information-on-personal-facebook-profile/.  Largent, along with two other defense-friendly decisions, Zimmerman v. Weis Markets Inc., Case No. CV-09-1535 (C.P. Northumberland May 19, 2011) and McMillen v. Hummingbird Speedway Inc., Case No. 113-2010CD (C.P. Jefferson Sept. 9, 2010) got the defense bar out to a 3-0 lead on the discoverability of information posted on Facebook.  While the Martin decision scores a big point for plaintiffs, it demonstrates that there is still a lot of uncertainty in the law surrounding the recent phenomenon of social media and its relevance to civil litigation. 

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We live in a digital world where smartphones are the norm and email access is seemingly as important as food and water. This increase in usage of email and the amount of electronic data requires companies to develop ways to collect and store a significant amount of data. Inevitably, this data will have to be searched, reviewed, and produced to opposing parties in the event of litigation and often at great cost to the producing party. Fortunately for one plaintiff, however, this is a cost that it will not have to incur.

In I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D. N.J. Dec. 9, 2011), Judge Debevoise was asked to consider whether the plaintiff was required to produce documents from so-called “unallocated space” areas on its computers, namely, the area of the computer where deleted files and temporary data are stored. The parties stipulated that the defendants would hire an expert to conduct a “forensic investigation” and keyword search of the plaintiff’s entire computer system, using over 50 search terms. This search was not limited to specific custodians or time periods and, in the unallocated space alone, the search terms yielded an estimated 65 million “hits,” or 95 million pages of files. In light of this, the Magistrate Judge modified a previous order, which required the plaintiff to produce the results of the forensic investigation and allowed the plaintiff to exclude data from the unallocated space.

In reviewing the Magistrate Judge’s modification, the Court acknowledged the overwhelming burden to the plaintiff if it had to review the documents from the unallocated space. The Court further explained that a “privilege review of 65 million documents is no small undertaking” and that “[e]ven if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.”

The Court also recognized that the defendants did not show the likelihood that relevant and non-duplicative information was stored in the unallocated space. Additionally, the Court found that the money the defendants spent to obtain the data “pale[d] in comparison” to the cost the plaintiff would incur to review the data.

Finally, the Court addressed the proposed search terms and discussed five factors to consider when analyzing whether those terms were reasonable: “(1) the scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians; (2) any date restrictions imposed on the search; (3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents; (4) whether operators such as ‘and’, ‘not’, or ‘near’ are used to restrict the universe of possible results; [and] (5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.” The Court examined all of these factors and stated that although the plaintiff should have “known better than to agree to the search terms . . . the interest of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.”

The plaintiff in I-Med Pharma Inc. was fortunate in that the Court did not force it to review and produce all of the data in the unallocated space. Not all parties, however, will always be as fortunate. When negotiating with the adverse party regarding the search terms to be utilized for a document production, the following steps may avoid situations similar to those facing the parties in I-Med Pharma Inc.:

·         Know your client’s data system. This may be the most obvious, but most important, advice. To negotiate effectively, you must know certain aspects of the data storage system, such as how much data is contained there, how many potential custodians exist, how long is data retained, and where potentially duplicative data resides.

·         Negotiate for the use of restricting terms. This is especially true with frequently used words. For example, in I-Med Pharma Inc., one of the search terms was the word “return.” Negotiate for the use of search operators, such as “and,” “not,” or “near” in an attempt to further limit your results.

·         Do a sampling first. If possible, run a search with proposed terms to determine what types of “false positives” may result. This will enable the parties to further analyze the negotiated search terms and their effectiveness.

·         Determine relevant time periods and custodians. Limit searches to only those individuals who had a role in the subject matter of the litigation and to only that time period in which relevant documents may exist.

·         Be willing to seek the Court’s assistance. I-Med Pharma demonstrates the efficacy of seeking the Court’s involvement early on to limit the costs associated with e-discovery. When doing so, however, make sure you have done your proverbial homework and are able to educate the Court as to your client’s data systems and what the search proposed by the opposing side truly entails.

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A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant.  Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident. 

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.  Specifically, Defendant claimed that Plaintiff posted several photographs that showed her enjoying life with her family and a status update about going to the gym.  Defense counsel requested access to Plaintiff’s Facebook page, but Plaintiff refused to voluntarily disclose any information about her profile.  In response, Defendant moved to compel Plaintiff to disclose her Facebook username and password.  Plaintiff  opposed the Motion, arguing that the information sought was irrelevant, did not meet the threshold under Pennsylvania Rule of Civil Procedure 4003.1, and that access to her information would cause unreasonable embarrassment and annoyance.    

Court of Common Pleas Judge Richard J. Walsh began his opinion with a lengthy description of Facebook as the site that “helps you connect and share with the people in your life.”  Judge Walsh pointed out that the site has more than 800 million active users, 50% of whom are active on the site daily.  Although he acknowledged that Facebook has privacy settings, Judge Walsh emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. 

The Court then turned to the issue at hand - whether and to what extent such “private” information is discoverable in a civil case.  With respect to relevancy, the Court pointed out that Pennsylvania has a “slight” relevancy threshold pursuant to Pennsylvania Rule of Civil Procedure 4003.1.  Under this standard, the photographs depicting Plaintiff with her family and status updates about exercising at the gym are “clearly relevant” because they might prove that Plaintiff’s injuries do not exist or that they are exaggerated.

The Court found that Plaintiff’s Facebook information is not privileged.  Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information.  In addition, Pennsylvania law does not recognize a confidential social networking privilege.  As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”  Further, Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users because the information was sought directly from Plaintiff, who is not an ISP. 

Finally, the Court concluded that Defendant’s request was not unreasonably embarrassing or annoying and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail.  Since Plaintiff’s postings were never truly private, there could not be any unreasonable embarrassment in producing the postings in litigation.  The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information. 

As Judge Walsh points out, social networking is a recent phenomenon and these issues are just beginning to infiltrate the courts.  Although relatively few courts have spoken on this issue, the standard is becoming clear: Post at your own risk. 

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Although the Federal Rules of Civil Procedure set the stage for electronic discovery in civil cases, there is no such express regime in the criminal context. 

The absence of such a standard became evident in a recent case in the Western District of New York.  In United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), defendants were charged with several counts related to the distribution of cocaine.  The criminal investigation leading to these charges involved court-authorized interceptions of cellular telephone communications indicating that the defendants were allegedly engaged in drug trafficking. 

In its voluntary discovery, the Government furnished defense counsel with disks containing thousands of pages of documents relating to these communications using the IPRO program routinely used by the U.S. Attorney’s Office in cases involving multiple defendants.  Defendants claimed this reported data had problems with omissions and inaccuracies resulting from the collection and management system used. The defendants also objected to the Government’s failure to provide the data in the “most useful form that is readily available” and claimed the “.tiff” files received could not be sorted or searched.  The appropriate format, according to the defendants, was either the “.pdf” or native format.  The Government, in response, refused to provide the files in these formats arguing that the cost of reproduction was prohibitive, that it had already produced the particular data requested by defendants, and that it should not bear the burden of reproduction merely because it would be more helpful or useful to the defendants. 

Examining this issue, the court began by pointing out the absence of a standard in criminal cases for the production of ESI.  While Rule 16(d)(1) of the Federal Rules of Criminal Procedure, the general authority ordering the manner of production in criminal cases, provides that, “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief,”  it does not specify the manner in which such production should be made.  The court, therefore, turned to two other jurisdictions addressing criminal prosecutions involving extensive document production.  In United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), the United States District Court of the District of Columbia, conceded that there was no  criminal equivalent to, and, thus, applied, Federal Rule of Civil Procedure 34.  In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the Sixth Circuit refused to require the Government to reproduce electronic materials in the format requested by the defendant because the defendants had ready access to the information and documents as they were kept in the usual course of business.

Applying these rules, the court determined that the Government was the party “better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all.”  The court mandated that the Government must reproduce its disclosure in a searchable format (PDF), or in the native format.  The court based its decision on the rationale that the Government is in the better position to organize the mass of information in a manner that is searchable by the defense because: (1) the Government already compiled this electronic information from its various native forms into a common electronic database and; (2) rather than have each defendant compile the data involving that party or repeat the expense of reproducing the entire Government production, the Government should bear this burden.  In making this decision, the court made it clear that it was not adopting Rule 34 of the Federal Rules of Civil Procedure in all criminal cases, as in O’Keefe, rather it was applying it in only this case.    

Briggs is a clear example of the need for a more uniform regime for ESI in criminal cases.  According to the court, the Justice Department appears to have at least one working group considering the “best practices” for ESI in criminal cases.  Until then, each court faced with a motion to compel criminal discovery with ESI data will have to devise its own scheme for ESI discovery based on the limited rules governing the criminal context at this time.  Defendants, then, are best advised to be prepared and willing to seek the court’s involvement early on to ensure that the production of ESI is reasonable, proportionate, and manageable so as not to cripple their efforts in defending against criminal liability. 

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A “trend” is generally defined as a general course, drift or prevailing tendency.   In the battle between the potential privacy rights of a social networking site user and the desire of a lawsuit party to have full access to the private portions of that user’s profile, the trend favoring full and unfettered access has become clearer with a decision just issued by the Pennsylvania Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc.

In McMillen, the plaintiff was injured during a stock car race, and sued for damages after being rear-ended during a cooling down lap.   He alleged significant physical injuries and overall loss of general health and vitality, as well as an “inability to enjoy certain pleasures of life.” During the lawsuit, the defendants requested that plaintiff identify the name of all sites to which he belonged, and to identify his user name(s), login name(s), and passwords. Plaintiff responded by stating that he belonged to Facebook and MySpace, but he refused to give the other requested information based on confidentiality and privacy grounds.

After reviewing publicly-accessible portions of plaintiff’s sites to discover comments about a fishing trip and possible subsequent car race, the defendants filed a motion with the court to compel the production of the requested information.   The court granted that motion and ordered the plaintiff to provide all of the requested user/login names and passwords.

Recognizing broad discovery rules, the court determined that any information and documents can be discoverable by another party as long as they are relevant to the case and not otherwise privileged. The court in McMillen refused to create a new privilege for social networking sites (none has previously existed), and further found that the private portions of plaintiff’s sites could be relevant to “impeach and contradict his disability and damages claims.”   Specifically, the court noted:

“Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly. . . . When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bring to light relevant information that may not otherwise have been known. Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given [the] admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”

Employer Take Away:   What should you as an employer take away from this development?

(1)        As the trend will likely continue in favor of social media disclosure over privacy objections, you should continue to understand that nothing written or posted on blogs or other Internet sites will absolutely remain confidential and not subject to viewing by the public.   Be vigilant in your policies and practices to make sure that social media-related statements or conduct of your managers and employees do not have the potential to expose your company to liability.

(2)        You should understand that the McMillen case reflects the current sentiment toward open disclosure of social media sites generally, and not just for personal injury lawsuits. You should recognize, therefore, that social media can, and should, be a potential tool and valuable source of information in employment-related cases where an individual’s physical activities and emotional relationships are very often at issue.

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Although the imposition of sanctions for misconduct involving electronic discovery continues to gain momentum, it is still rare that courts turn to the ultimate sanction: the dismissal of a lawsuit. One plaintiff in an Illinois tort case left the court with little choice. In Peal v. Lee, et al., 2010 Ill. App. LEXIS 760 (Ill. App. Ct. 1st Dist. July 30, 2010), the appellate court affirmed the dismissal of a lawsuit due to the plaintiff having intentionally destroyed over 20,000 computer files the day before the defendants’ expert was to inspect the computer.

The plaintiff ice skating instructor sued his employer and others for, among other things, defamation and intentional infliction of emotional distress. While the Complaint alleged that the tortious conduct occurred in 2005, the defendants were in possession of letters that the plaintiff had submitted to the defendants in 2004 complaining of the same conduct. As a result, the defendants moved to dismiss under the statute of limitations, but the court refused to do so because the plaintiff denied authoring those documents.

Fast forward to discovery: The defendants sought to obtain evidence confirming that the plaintiff had written those 2004 letters. After the plaintiff violated a court order requiring that he produce his computer, the court again ordered that the computer be produced by April 10, 2009. The defendants’ forensic expert would later uncover that, on April 9, 2009, the plaintiff used four different data “wiping” programs to permanently delete data from the hard drive, and that before that date, the plaintiff had used three other such programs. This, notwithstanding that his attorney had sent him defense counsel’s electronic discovery preservation letter.

The defendants wisely moved to dismiss the case because of spoliation. To say the least, the trial court was not humored by the plaintiff’s explanation that he had downloaded “cleaning programs” to remove viruses on his computer. After an evidentiary hearing, the court dismissed the case with prejudice. The appellate court found “no evidence” showing that the trial court abused its discretion in dismissing the case. The court’s disdain for the plaintiff’s misconduct was evident, and perhaps best reflected in its colorful description of plaintiff’s arguments: “completely disingenuous,” “nervy,” “hollow,” “patently untruthful,” and “pure pettifoggery.” The plaintiff claimed he did not act in bad faith; the court responded that the plaintiff’s conduct is “the personification of bad faith.”

Few can be surprised by the trial court’s dismissal and the appellate court’s biting affirmance given the plaintiff’s shocking conduct. Still, this case demonstrates that courts can and will resort to the sanction of all sanctions when a party takes such nefarious steps to thwart the discovery process and more generally to undermine the integrity of the judicial system.

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