Social Media Investigations: Digging Deep, Or Just Scratching The Surface

Time and again, defendant corporations find themselves settling cases at inflated valuations simply to avoid the costs to preserve, review and produce substantial amounts of electronically stored information (ESI). In contrast, individual plaintiffs with very few documents to produce, if any, have been sitting back and relaxing throughout discovery.

This is changing as defendants increasingly use social media to turn the tables on plaintiffs. A well-known example involved the surviving husband in a wrongful death case in Virginia who shared a picture of himself on Facebook in which he was drinking a beer and wearing a t-shirt that read "I ♥ Hot Moms." His attorney instructed him to delete this picture, but not before it was spotted and retained by defense counsel, ultimately resulting in an adverse inference instruction to the jury and a fine of more than $700,000. Allied Concrete v. Lester, 285 Va. 295, 302 (2013).

Defendants can and should use photos, tweets, vines, snaps, emojis and whatever else can be pulled from a plaintiff's social media trail to potentially discredit the plaintiff and demonstrate that alleged damages are not based in reality. But are defense attorneys today properly digging through social media postings, or are they just scratching the surface?

New York's Social Media Authority

The creation of Facebook in 2004 kicked off the social media boom. But it was not until September 2010 that New York courts dipped a toe into the treacherous social media waters and addressed the issue of discoverability. In Romano v. Steelcase, 30 Misc.3d 426 (Sup. Ct. Suffolk County, 2010), the court granted access to the plaintiff's complete Facebook and MySpace accounts, including private and deleted content, following production by defendants of public postings from both accounts that depicted the plaintiff's "active lifestyle" in contradiction to her claims:

[W]hen plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites, else they would cease to exist. Since plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy....

In some situations, unfettered access to the private portion of a social media account could be characterized as a "fishing expedition." Yet, in...

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