Presenting a 90-Minute Encore Presentation of the Webinar with Live, Interactive Q&A Securing Social Media Admissions: Investigative Strategies, Spoliation Warnings, Use of Subpoenas to Obtain Evidence Finding and Obtaining Admissions by Opponents on Twitter, Instagram, Facebook, Reddit, YouTube and Other Social Media Sites WEDNESDAY, NOVEMBER 30, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Daniel M. Gilleon, Partner, The Gilleon Law Firm , San Diego Jefferson M. Starr , Esq., Lueder Larkin & Hunter , Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Securing Social Media Admissions Investigative Strategies, Spoliation Warnings, Use of Discovery to Obtain Evidence November 30, 2016
“ Think about what people are doing on Facebook today. They’re keeping up with their friends and family, but they’re also building an image and identity for themselves, which in a sense is their brand. They’re connecting with the audience that they want to connect to. It’s almost a disadvantage if you’re not on it now” – Mark Zuckerberg, Facebook, Inc., CEO 6
• Step 1: Locating Social Media • Facebook • Twitter • Instagram • Snapchat • Vine • Yik Yak • Venmo/PayPal • Online Dating Sites or Apps • Fitness Apps with Social Components (many of these post through Facebook) 7
Facebook: the Granddaddy of Social Media • Over 1.7 billion users worldwide • Allows the sharing of personal information, business information, photographs, videos • Many other social media applications link through Facebook, or can be programmed to link through Facebook • Facebook is the social network courts have dealt with the most • “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting.” Bass v. Miss Porter’s School , 2009 WL 3724968 (D. Conn. Oct. 27, 2009) 8
Twitter: 140 Characters of Regret • 313 Million Monthly Active Users • Twitter allows dissemination of thoughts, ideas, images and links to a large audience, quickly, and often in a stream of consciousness fashion • The length of “tweets” is limited to 140 characters • Users can tweet Videos and Photographs • Twitter also allows searching by topic (using #hashtags to identify tweets with a similar subject matter) • A user’s tweets may be set as public, so anyone can read them, or they may be private tweets that can only be read by approved other users • Tweets may express a user’s mental, physical or emotional state 9
Instagram and Snapchat: a Picture is worth 1000 “Likes” • Instagram is a visual social medium allowing users to post pictures and videos • 500 million monthly active users (more than Twitter) • Like Twitter, Instagram uses #hashtag searching to identify pictures of the same subject matter • Instagram accounts, like Twitter accounts, may be set as public or private • Snapchat is a photo and video-sharing application known for the fact the images “disappear” after they are viewed by the recipient • 150 million users daily • “Snaps” may be saved if the recipient takes a screenshot of the photo/video once received or if the user downloads the snap prior to posting • Users may be public or private • Snaps may be posted to the “My Story” feature where they will remain accessible an unlimited number of times for 24-hours. 10
Vine/YouTube Reddit • Vine is an application allowing • Reddit is an online forum for users to create and share short disseminating news, advice, and video clips anecdotes about a wide variety of topics • YouTube allows much longer • Only members can contribute video clips content, but the site is public • Information revealed from • Members sign up with a these sites could reflect on a party’s mental, physical or username and all posting history emotional state is available under this username • Profiles may be public or • Because of the wide variety of private topics that Reddit covers, review of the postings will be required 11
Yik Yak Venmo • Began on college campuses, • Peer-to-peer payment sites and was similar to an • Venmo connects people using anonymous Twitter Facebook, and transactions are • Users could post by default public observations to people in • Others can see who you are their geographic area about paying, and for what (if a detailed anything that might be a subject line is given) shared experience • Venmo has already been used by • Yik Yak now allows federal prosecutors to identify contributors to have proceeds from illegal drug sales. usernames and accounts, United States v. Brooks , 139 F. which would reveal all posts Supp. 3d 406 (D.C. 2015) created by the user, like Reddit usernames 12
Online Dating Sites/Apps Fitness Apps/Smart Watches • May contain information similar to that • Especially relevant in personal injury found on Facebook profiles cases • May also contain photographs similar to • FitBit and other fitness trackers those posted on Facebook and Instagram • Discovery from smart watches could • Personal messages between users can be likened to Facebook messages. Courts also be requested to show plaintiff’s have held that Facebook messages — and activity level social media content in general — which discusses or relates to the claim at issue in the case is discoverable. See e.g., Farley v. Callais & Sons, LLC , 2015 WL 4730729 (E.D. La. Aug. 10, 2015); Ogden v. All-State Career Sch. , 299 F.R.D. 446 (W.D. Pa. 2014). • However, discovery from dating sites has not been tested in courts and judges could determine there is a heightened sense of privacy in these sites 13
How to Access this Information • Depending on a party’s privacy settings, much of this information may be publicly available. Facebook, Twitter, Instagram, Venmo, Vine and YouTube allow you to search by a person’s name (assuming the account is under the party’s real name) • Identify social media accounts and user names through Interrogatories • Request the party download his/her own social media data • Instructions for Facebook, Twitter and Instagram can be found online and are updated from time to time • Include instructions in Request for Production of Documents • It may also be worthwhile to include this information in any discovery motions made to the court, so the court understands the burden of production is minimal. See Appler v. Mead Johnson & Co., LLC , 2015 WL 5615038 (S.D. Ind. Sept. 24, 2015) (“The [profile downloading] process is undeniably simple, and far from burdensome. The process takes a few minutes, and one simply waits for a download to complete. . . [t]here is essentially no cost involved . . . [t]he download comes already separated into categories and files of a user's Profile information .”). • Courts may limit the categories of downloaded social media data produced. See id. (prohibiting the “family” and “religious views” sections from being produced) • Request an in camera review of the social media content • See, e.g. , Lewis v. Bellows Falls Congregation , 2016 WL 589867 (D. Vt. Feb. 11, 2016) • Courts may also require that the plaintiff “friend” an account set up by the court • Romano v. Steelcase, Inc. , 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) 14
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