Labor & Employment Developments Blog

As most any litigation practitioner knows, Facebook can be GOLD.  Pictures really are worth 1,000 words. . . or more.  That million dollar picture of a plaintiff who has claimed debilitating emotional distress:  on a boat, raising a beer with friends, and posted smack in the middle of the period of time that plaintiff claims was riddled with “emotional distress.”  GOLD.  And it happens with regularity.  Facebook, as with other social media, is a medium of the moment – individuals post (and get tagged) in pictures posted during the adrenaline-infused, alcohol-fogged moments of “good times.”  And it is exactly these moments – moments easily forgotten by Plaintiffs asking a judge or jury for emotional distress damages – that are crucial to developing a clear picture of emotional distress. 

Recognizing the relevance of social media, Courts regularly compel the production of Facebook accounts and other social media, email accounts and text messages.  Although not cited here, the case law compelling the production of social media – in electronic format nonetheless – is vast and spans the state and federal court systems nationwide.  These data, by and large, constitute contemporaneous expressions of a party’s at-the-moment state of mind.  Governed by a general standard of relevance, nothing could be more relevant to an individual’s day-to-day experience than that individual’s own descriptions of their ups, downs, impressions, musings, hopes, and disappointments. Much like a personal journal, social media accounts (walls, tweets, pictures) are reliable windows into a party’s subjective experience of key events.

Facebook – arguably the largest social media site worldwide – purports to make easy collection of a user’s account.  And, for the most part, it does.  A user may navigate to an account setting which allows for a full download of the user’s active account data.  Facebook will send the user an email alert when the download is ready, and, via the provided link, a user can download the data onto their computer or whatever electronic media is handy.  This is an effective method of discovery . . . until the user deletes data from their Facebook account. 

Although deletion of relevant data after a party anticipates litigation is clearly spoliation, the knowledge of evidentiary standards and document retention requirements possessed by the average individual plaintiff is probably non-existent.  And, understanding basic human nature, most people’s first instinct upon seeing bad information is to get rid of it.  So, what happens to user-deleted data in the Facebook world?  Well, although it is retained on Facebook servers for some undisclosed length of time, for all intents and purposes it disappears into the ether.  Users are unable to request or access deleted data.  Subpoenas or civil court orders result in a Facebook response that cites the federal Stored Communications Act, which merely “permits” Facebook to respond . . . an invitation it regularly declines. 

So, faced with a plaintiff who admits to deleting data, the content of which he or she “cannot remember,” what is a defense attorney to do?  One key to a good defense is a good offense:  At the outset of every case, put the plaintiff and his or her attorney on written notice that all documents should be preserved and not destroyed, and specifically mention social media.  Then, at each deposition where it could be an issue, ask the $64,000 question:  Has the witness deleted, removed, or altered any social media posts or content?  If the answer is yes, you may be able to follow up with an inspection of the computer used by that witness and may find stored images of the deleted data.

Spoliation sanctions also can provide some remedy for deleted data.  The current court-provided remedies come in the form of a jury instruction or evidentiary inference.  But, remember the opening image – a plaintiff sitting on a boat, holding up a beer, laughing with friends – and think about whether this image can really be replaced with an evidentiary inference. 

It seems that the law as it currently stands creates a perverse incentive to delete the best of the relevant social media data, pictures, or posts and take one’s chances with a spoliation sanction.  This, undisputedly, leaves room for improvement.  With the prevalence of social media, there is the opportunity – and possibly as social media grows beyond even its current bounds  the obligation – to preserve, at least for a time, the relevant and probative evidence offered by the pictures and thoughts that parties to litigation choose, on their own, to share publicly.  Even if “publicly” means to a user’s 372 “friends.”