Journal of American Law

SPRING 2015

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.

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14 Journal of American Law // Spring 2015 party still may obtain the evidence through the formal dis- covery process. In McMillen v. Hummingbird Speedway Inc., 35 the court approved a motion to compel discovery of the pri- vate portions of a party's Facebook profle afer the opposing counsel produced evidence that the party might have misrep- resented the extent of his injuries. Making a party's social networking account private de- creases the likelihood that the court will approve a request for discovery targeting the account. Courts are reluctant to grant discovery requests for social media content based on a mere suspicion that relevant evidence is present. Typically, the par- ty making the request must make a threshold showing that public portions contain relevant information. 36 Courts may reject requests for being overly broad. 37 In Caraballo v. City of New York, 38 the court refused to allow a party to access the other side's private social media content because the request was not tailored narrowly to uncover evidence relevant to the case. Te court noted that "digital 'fshing expeditions' are no less objectionable than their analog antecedents." 39 Cleaning up: Spoliation and Preservation Although an attorney may advise a client to adjust privacy set- tings, an attorney cannot allow a client to engage in spoliation of evidence. Te fear of spoliation is particularly strong in cases in- volving electronic evidence. With the click of a mouse, evidence can change or vanish. Lawyers must advise clients not to delete or destroy relevant photos, text, or other content. In a 2014 opinion, the North Carolina State Bar reminded attorneys that they can- not counsel a client to engage in unlawful conduct and spoliation of evidence is unlawful. 40 A lawyer may instruct the client to re- move postings only if the information is not relevant to the case. Div. 2011). Te court held that postings on Facebook "are not shielded from discovery merely because plaintif used the service's privacy settings to restrict access, just as relevant matter from a personal diary is discoverable." (Internal citations omitted). 35 McMillen v. Hummingbird Speedway Inc., No. 113-2010 CD (Pa. Ct. C. P. Jeferson County 2010). 36 McCann v. Harleysville Ins. Co., 910 N.Y.S.2d 614, 615 (N.Y. App. Div. 2010). Te court upheld the lower court's ruling denying the defendant's motion seeking photos and an authorization for the plaintif 's Facebook account because "Although the defendant specifed the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence." Te mere hope that relevant evidence might be discovered was insufcient. 37 See Root v. Balfour Beatty Const. LLC, 132 So. 3d 867, 870 (Fla. Dist. Ct. App. 2014). Te appellate court quashed a magistrate's order permitting the discovery of certain broad categories of information from the plaintif 's Facebook account. Te court noted that categories relating to mental health history, substance use history, and litigation history were "the type of carte blanche discovery the Supreme Court told us to be on guard against." 38 Caraballo v. City of New York, No. 103477/08 2001 N.Y. Slip Op. 30605LU, 2011 WL 972547 (N.Y. Sup. Ct. Mar. 4, 2011). 39 Id. at *3. 40 North Carolina State Bar Ass'n, Formal Ethics Op. 5 (2014). If an attorney knows of relevant social media content that would be responsive to a formal discovery request, the attorney must take reasonable steps to obtain and preserve that informa- tion. Tis applies both before and afer litigation has commenced. For most social media sites, it is possible for users to make posts on a profle other than their own. Under Philadelphia Bar Opin- ion 2014-5, attorneys must take action to preserve posts with rel- evant content on their clients' Facebook pages, even if the client did not create that content. Unless an appropriate record of the social media data is preserved, a party or nonparty may not delete information subject to a duty to preserve. 41 Te failure to preserve relevant social media evidence can result in penalties. Federal Rule of Civil Procedure 37 prohibits spoliation of evidence. 42 It also is a violation of ABA Model Rule 3.4 Fairness to Opposing Party and Counsel. 43 Section (a) of that rule states that a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal evidence. Failing to preserve evidence can lead to a spoliation instruction. Te instruction allows the jury to take an adverse inference from the failure to preserve. Te number of sanctions involving e-discovery is skyrocketing. 44 Te most common cause of sanctions is failure to preserve evidence. 45 Allied Concrete Co. v. Lester demonstrates the danger. 46 In that case, the defendant's counsel issued a discovery request to the plaintif 's attorney requesting screenshots of all of the plain- tif 's Facebook content on the day the answer to the request was signed. Defense counsel attached to the request a copy of a po- tentially damaging photograph downloaded from the plaintif 's Facebook page. 47 Te next day, the plaintif 's attorney instructed the frm's paralegal to tell the plaintif to "clean up" his Facebook page to prevent additional damaging content from coming to light. Te paralegal emailed the plaintif and told him to delete photos from his Facebook page. Te plaintif responded by deactivating his Facebook account. Te plaintif 's attorney then served an answer to the discovery request, stating that the plaintif did not have a Facebook page as of that date. 48 Te plaintif eventually reactivated his account and took screenshots of the requested information before deleting 16 pho- tos from the profle. Te plaintif testifed at a deposition that he 41 Social Media Ethics Guidelines, Te Commercial and Federal Litigation Section of the New York State Bar Association, March 18, 2014 at 11, available at http://www.nysba.org/Sections/Com- mercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_Eth- ics_Guidelines.html. 42 Fed. R. Civ. P. 37. 43 Model Rules of Prof'l Conduct R. 3.4(a) (2013). 44 Gregory R. Antine, Rose Hunter Jones, and Dan H. Willoughby, Jr., Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J.789, 794 (2010). 45 Id. at 803. 46 Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013). 47 Id. at 702. 48 Id.

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