The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.
Issue link: http://journaloflaw.epubxp.com/i/477043
Spring 2015 // Journal of American Law 7 the 9th U.S. Circuit Court of Appeals clarifed that the SCA only protects "content" and defned it as the "intended message con- veyed by the communication and does not include information regarding the characteristics of the message…." As a result, so- cial media sites can disclose data regarding a party's usage and other noncontent aspects of social media activity. Te application of the confdentiality provisions of the SCA to prevent disclosure may depend in large part on wheth- er a communication was intended to be private, as noted in Ehling v. Monmouth-Ocean Hospital Service Corp. 10 Most so- cial media sites such as Facebook have various levels of pri- vacy settings that the courts look at, among other things, in determining intent. Moreno v. Hanford Sentinel Inc. 11 was an infuential case that afrmed there is no expectation of privacy when "open to the public eye." It was determined that posts on pages were open to the public eye and, therefore, there could be no reasonable expectation of privacy. In Ehling, a recent New Jersey federal court held that an employee's Facebook posts were protected from disclosure by the SCA. It analyzed the application of the SCA and found that Facebook posts were subject to the act as they were made over the Internet, transmitted via an electronic communica- tion service, maintained in electronic storage, and not accessi- ble to the general public. Te court pointed out the question of accessibility to the general public depended on a user's privacy settings. Te fact that the employee adjusted her privacy set- tings to restrict the reading of her posts by "friends" only was an important factor in the court's ruling. In Flagg v. City of Detroit, 12 the court ordered the defendant to sign a release to allow production of electronically stored content confrming that the SCA does not prevent a party from providing consent to the release of social media content. Social media must Be Relevant to the issues in the Case As pointed out by the court in a January 2014 decision by the U.S. District Court for the Northern District of Indiana, rele- vancy is a threshold issue that must be addressed. "To be sure, anything that a person says or does might be refective of [her] emotional state. But, it is hardly justifcation for the produc- tion of every thought [she] may have had…." 13 When requesting production of social media evidence, narrowly tailored requests for specifc information should be used; release of all messages on social media accounts allows defendants to "cast too wide a net." 14 Another case in point is 10 Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv- 3305 (WMJ) (D.N.J. Aug. 20, 2013). 11 Moreno v. Hanford Sentinel Inc. 172 Cal. App. 4th 1125, 1130 (2009). 12 Flagg v. City of Detroit, 252 F.R.D., 346, 363 (E.D. Mich. 2008). 13 D. O. H. v. Lake Cent. Sch. Corp., 2014 U.S. Dist. LEXIS 5585 (N.D. Ind. Jan. 15, 2014) – Simply Storage, 270 F.R.D. at 435 (quoting Rozell v. Ross-Holst, 2006 U.S. Dist. LEXIS 2277, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006)). 14 Mackelprang v. Fidelity Nat. Title Agency of Nevada Inc., 2007 U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007). Salvato v. Miley. 15 Here, the court held that the "mere hope" that the texts, emails, and other communications such as so- cial media might contain an admission is not enough to re- quire "open access to the plaintif 's private communications with third parties." One case that focuses on relevancy is McMillen v. Hum- mingbird Speedway. 16 Tis is a personal injury case where the court determined there was no "social website privilege" per se and the compelling production of login information could lead to discovery of information in prosecution or defense of a lawsuit. Te court pointed out that privacy concerns weigh less when a party chooses to disclose information and that it was unfair to allow the party to hide evidence behind priva- cy controls. Te party seeking evidence must demonstrate the threshold level of relevancy—the same as for tangible items and other electronic content. Te court noted that the SCA prohib- its entities that qualify as electronic communications services from disclosing the content but does not act to prohibit a party from obtaining the content via user consent or court order. Another important case pertaining to the SCA is Crispin v. Christian Audigier Inc. 17 Te court pointed out that one of the primary considerations in determining whether content was discoverable was the sites' functions as well as its priva- cy settings. Further, "[T]he courts have relied on information contained in the publicly available portions of a user's pro- fle to form a basis for further discovery.…" 18 "Discovery of nonpublic social media data may be obtained only upon an evidentiary showing that such private social media material is likely to contain information that will reasonably lead to the discovery of admissible evidence." 19 In the majority of cases in which social media evidence is aggressively sought, it is likely the issues will end up in front of the judge in the form of a motion to compel, motion for a protective order, or motion to quash. Tere are a number of factors that are considered when ruling on motions related to social media evidence. Tis includes the nature of the social media evidence requested; relevancy to claims asserted, e.g., liability, damages, or both; discovery rights; other ways of ob- taining evidence; prejudice to the parties; authentication; ad- missibility into evidence; and logistics. Tis typically results in a protective order arising from the court's balancing of inter- ests between rights to discovery and rights to confdentiality. Admissibility of Social media evidence Just like any other piece of evidence presented to the court, social media evidence must be authenticated. In United States 15 Salvato v. Miley, U.S. Dist. LEXIS 81784 (M.D. Fla. June 11, 2013). 16 McMillen v. Hummingbird Speedway, 2010 Pa. Dist. & Cnty. Dec. Lexis 270. 17 Crispin v. Christian Audigier Inc. 717 F. Supp. 2d 965 (C.D. Cal. 2010). 18 Hoy v. Holmes, 2013 Pa. Dist. & Cnty. Dec. LEXIS 204 (Pa. County Ct. 2013) 19 Holder v. AT&T; Services Inc., 2013 U.S. Dist. LEXIS 157560, 2013 WL 5817575 (M.D. Tenn. Oct. 29, 2013)