How can mass tort firms navigate the changing social media discovery landscape?
The abundance and sophistication of social media platforms have changed our society. For the most part, it has been a positive tool. Today, we can connect with people across the world, exchange ideas, and expand our network all just with the click of a button. In the legal community, social media has also changed the way attorneys search for and uncover evidence.
Claims for personal injury, including products liability and complex tort actions, almost always demand relief for emotional pain and suffering. That being said, what defense litigation attorney would not cherish Instagram photos of the personal injury plaintiff dancing at a party? Mass tort disputes may also contain elements of emotional distress, suggesting the discoverability of social network data. Certainly, a Tweet could be central to a failure to warn claim. With so much of our lives online, it is hard to imagine many circumstances where social media evidence is not responsive to a narrowly tailored and reasonable discovery request.
Social Media Use Statistics
According to the Pew Research Center, seven-in-ten Americans use social media platforms for news and information, entertainment, and to connect with others. As more Americans have adopted social media, the user base now encompasses a broader representation of the population. The percentage of use adults who say they use at least one social media site, by age:
- 18 – 29 years old – 84%
- 30 – 49 years old – 81%
- 50 – 64 years old – 73%
- 65+ years old – 45%
In 2021, YouTube and Facebook are the most widely used online platforms, and their user base is most broadly representative of the population as a whole. Smaller shares of Americans use sites such as Twitter, Pinterest, Instagram, and LinkedIn. Each of these websites offers users the ability to create content including posts, comments, and photographs in addition to tracking the content a user shares such as “likes” and “retweets”. All of this data can be mined for inconsistencies in statements, impeachment of testimony, and other information which can be used by defendants to torpedo a claim or greatly reduce compensation.
Court Standards for Social Media Discovery
American courts, like many other institutions, are playing catch up to the wide use of social media and how it can be used to prove or disprove legal claims. Generally, courts will allow the discovery of material posted on social networking sites if it is relevant to the litigation and such requests are narrowly tailored. There is also little difference between state and federal orders for social media production. For example, in James v. Edwards, 85 VA. Cir. 139, 140-41, in the Circuit Court for Greensville County held that a defendant seeking discovery of a plaintiff’s social networking activity was relevant given that the plaintiff put his mental and physical state at issue by filing a lawsuit for personal injuries, and then chose to share potentially relevant information with others on the Internet. A 2018 opinion from the New York Court of Appeals offers guidance related to the discoverability of social media. In Forman v. Henkin, 30 N.Y.3d 656, 666 (2018) the court offered the following criteria to evaluate whether social media was discoverable:
- Consider the nature of the event causing the litigation and the injuries claimed to assess whether relevant material is likely to be found on the social media account, and;
- Issue an order tailored to the particular controversy, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder.
Social Media discovery rulings, much like social networking sites, continue to develop and evolve. In the Southern District of Indiana, a federal judge decided that “tagged” photographs are also discoverable. “Tagging” is a process by which a third party can take and post a photograph and digitally associate the photograph with the responding party, thereby making such photographs available on the responding party’s Facebook page).
In Holley, et al. v. Gilead Sciences, Inc., et al., No. 18-cv-06972-JST(JSC) (N.D. Cal. April 2, 2021), California Magistrate Judge Jacqueline Scott Corley, in response to a request from the plaintiffs to modify their electronically stored information (ESI) production obligations, issued several modifications to prior ESI orders, including an order for mass social media discovery from 250 plaintiffs. The judge’s order read as follows:
1. On or before April 30, 2021, Plaintiffs shall produce the Document Demand H social media ESI for a total of 250 Plaintiffs who have also submitted Plaintiff Fact Sheets. Plaintiffs have already produced social media ESI for 128 Plaintiffs. On or before April 9, 2021, Gilead shall identify for Plaintiffs an additional 122 Plaintiffs whose social media ESI shall be produced on or before April 30, 2021. Plaintiffs shall produce the social media ESI for the Plaintiffs identified by Gilead on a rolling basis with production complete by April 30, 2021. Should a Plaintiff selected by Gilead refuse to produce social media ESI (as opposed to certify that he/she does not have any discoverable social media), Gilead may identify a different Plaintiff who must produce the social media ESI.
The amount of production was overwhelming to plaintiffs’ counsel on the litigation and incredibly expensive. It can cost thousands of dollars in forensic work to properly gather and transmit social media data to opposing counsel. To date, there are over 900 pending cases in the tenofovir federal litigation in the Northern District of California.
How to Handle Your Client’s Social Media Use
At the time of onboarding, it would be wise to inquire about your client’s cyber activities and advise them on the importance of keeping their case details off all social media. Some firms include social media advisement with their new client welcome packet. They also train their intake and case management staff on how to discuss social media use with clients. Some of these discussion topics include:
- Being mindful of accepting new friends or followers after opening a legal claim
- “Checking in” or using other location-targeting services
- Allowing friends, family or others to “tag”, share, or post information about the client
It is important to find out if your client has posted information or photos/video that could be relevant to the litigation. If so, be mindful of the potential for your client to want to delete anything they deem harmful to the case. What is your duty in this situation? This is mostly common sense. First off, be clear with your client that deleting any post or media that could have relevance to the litigation could lead to spoliation penalties or even monetary sanctions. Refrain from directing or even suggesting that your client publish false or misleading information on a social network that is relevant to the claim. It is ethically permissible to do the following:
- Advise your client on social media privacy settings. Explain how the various settings allow different types of files and information to be accessed by certain groups of people or friends. Suggest that your client should use the strongest privacy settings if he/she wants fewer people to have access to posts, photos, videos friend lists, and other information.
- Screen media files and advise your client as to the potential ramifications if such media is posted on social media. In this situation, the client should be advised not to delete the media from its current storage even though it may never be posted on a social network.
- You may approve your client posting truthful information that could be relevant to the claim.
Sometimes clients are confused about why they may need to alter their social media habits or how such evidence can be used to make them look bad or untrustworthy in court. They may become hesitant to continue with their case if they feel like their social media history will result in zero compensation for their harm. It’s important to develop a communication strategy that explains the inherent risks of social media use without making clients feel like their legal rights are curtailed because they posted a happy, smiling picture after knee surgery.
As usual, courts are reacting to the problem and are somewhat behind the development of technology and its impact on our society. Courts will continue to struggle to adapt traditional discovery principles (relevance, scope, and proportionality) to the new and evolving world of social media. Thus, attorneys should be creative and instructive when arguing how these principles apply in the new age of social media networking sites. The lack of published opinions in this area indicates an opportunity for attorneys to generate changes in the law that will impact civil litigation for years to come.
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Written by Jerise Henson
About the Author
Jerise Henson is the Academy Content Writer at The Mass Tort Institute. She has served in numerous roles in mass tort firms from case manager to paralegal and director of client services. She is passionate and dedicated to improving education and training for allied professionals in the mass tort industry