Claims - February 2012

nications shared between friends on social networking sites is confidential, and therefore protected against production.

The ultimate Order required the Plaintiff provide his Facebook and Myspace user names and passwords to defense counsel. The court went further and built in an anti-spoliation order prohibiting the plaintiff from taking any steps to delete or alter existing information and posts on his social networking sites. Finally, the court dictated that only defense counsel has access to the accounts, and that the log-in information should not be provided to the parties directly. The Hummingbird approach requiring forced password production has not been an anomaly.

Federal Rule of Civil Procedure 26

Privacy vs. Discovery

Other courts have recognized the defendant’s need for information on social networking sites, yet have struck a balance between the defendant’s need for discovery and the plaintiff’s privacy concerns. A few weeks after Hummingbird, along very similar reasoning, the court in Romano v. Steelcase granted the defendant access to the plaintiff’s social networking sites, but did not explicitly require the plaintiff to turn over passwords. In Romano, the defendant sought access to the plaintiff’s current and past Facebook and Myspace pages on the grounds that the public portions of the plaintiff’s profiles showed content that was inconsistent with her claims for loss of enjoyment of life. The plaintiff’s public portion of her profile showed her smiling happily outside the confines of her home, despite her claim that because of her personal injuries she is largely confined to her home. The court concluded that the presence of inconsistent information on the public portion of the profile created a fair inference that the private portions of the profile also contained contrary discoverable information.

Like the Hummingbird Court, the Romano Court acknowledged the superseding need of the defendant to have the information contained on the social networking sites as without them, the defendant would be at a distinct disadvantage.

The Romano order required that the plaintiff provide the with defendant access to her current and past Facebook and Myspace pages, including all deleted and relevant information. The plaintiff had to

The insurer and its counsel must know the proper procedures for procuring evidence through social media sites. Most states follow the scope of discovery as set out in Federal Rule of Civil Procedure 26. It is important to be familiar with this rule when seeking discovery of social networking evidence.

According to Rule 26, “unless otherwise limited by court order, the scope of discovery is as follows: parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” This includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. The court may order discovery of any matter relevant to the subject matter involved in the action. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” says Rule 26.

This rule also requires parties to meet early in the litigation process and discuss discoverable electrically stored information and issues related to it. During this initial meeting, parties will discuss what electronically stored information will be relied on; how the information is stored; in what form the information will be produced the accessibility of the information; and issues related to privileged electronically stored information. Having a handle on Rule 26, as well as keeping up-to-date on current social media cases can make the difference between a win and loss. Source: www.law.cornell.edu and www.educause.edu

deliver to defense counsel a properly executed consent and authorization which may be required by Facebook and Myspace, permitting the defendant to gain access to the pages, both past and present. While this granted access to the material on the pages, it was not an explicit order to compel the discovery of the passwords themselves.

plaintiff continuing to ride motorcycles, including a recently purchased one, after the accident. There was also information that he traveled via motorcycle to West Virginia and Pennsylvania, and pictures depicting the plaintiff hunting, along with postings indicating that he may have recently ridden a mule.

Pursue What is Relevant

Still, a third approach uses in-cam-era review of the parties Facebook and Myspace accounts. In Offenback v. L.M. Bowman Inc., the plaintiff claimed to have suffered shoulder and lower-back injuries leading to a limited ability to stand, sit, bend, push and pull after the collision. Additionally, he claimed the injuries limited his ability to ride his motorcycle which led to a decreased sociability and lack of intimacy. Previously, the court had been provided the password and log-in information directly for the review and concluded that very little of the plaintiff’s Facebook account was relevant to the case before the court and not likely to lead to the discovery of relevant evidence.

However, the court did find some information in the profile relevant within the meaning of Rule 26(b), including photographs and postings showing the

A De Facto Standard?

Not all courts are embracing the production of evidence on Facebook and other social networking sites. In Piccolo v. Paterson, defense counsel filed a motion to compel after learning from the plaintiff during her deposition that she had a Facebook page. When defense counsel attempted to access the page, it became evident that the page was set to “private.” Counsel then demanded that the plaintiff accept its “friend request.” However, counsel for the plaintiff successfully argued that at the plaintiff’s deposition she was only questioned about photographs, several of which had already been provided and there was no assertion that the textual posting on the Facebook page would likely lead to the discovery of material evidence. The judge denied the motion.