By Jim Dedman
Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media. Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data. According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.
First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue. There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery). One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage. Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.
It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying). However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.
To address all potential needs in one volley, you can simultaneously serve the following:
1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.
2) Subpoenas to any other social media entities you have identified. Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.
3) Requests to admit seeking to authenticate the profiles you informally located. In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.
4) Interrogatories and requests for production seeking copies of the private areas of the social media profile. As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).
5) Supplemental responses to your opponent’s discovery to you. It is likely that your opponent has served discovery requests that call for the information you have located. Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit). This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.
6) Preservation letter. In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated. You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.
When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case. But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).