Michael Hoenig

Toward the end of January, New York’s Appellate Division, First Department, issued a short but significant decision holding an injury claimant’s private social media information discoverable, albeit with some limitations on the time span and subject matter. The opinion is Vasquez-Santos v. Mathew, 2019 N.Y. App. Div. LEXIS 527 (1st Dep’t Jan. 24, 2019). New York’s highest court had already held, in February 2018, that disclosure of materials from an injured plaintiff’s Facebook account, with limitations against improper “fishing expeditions,” was consistent with New York’s liberal approach to pretrial discovery. Forman v. Henkin, 30 N.Y.3d 656, 2018 N.Y. LEXIS 180 (Ct. App. Feb. 13, 2018).

Given Forman decided a year ago, what is so significant about the Appellate Division’s pithy Vasquez-Santos decision from a few weeks ago? After all, several decisions after Forman already had grappled with aspects of social media disclosure. See E. Glassman, M. Keough & M. Newcomer, “Insight: Making Social Media # Discoverable (or Not): Lessons Learned From Forman,” Bloomberg BNA (Nov. 26, 2018) (survey of several post-Forman decisions).

First, Vasquez-Santos appears to this writer to reflect an incremental ramp-up in social media discovery, namely, the access given to a third-party data mining company to uncover items on plaintiff’s private social media accounts. Second, the appellate panel’s lean, direct, “no-nonsense,” business-as-usual text and tone seem to herald social media discovery as a “given.” Precisely where to draw the boundary line to reasonably limit production thus may now be the real advocacy battlefield.

The recent explosion by New York appellate courts onto the brave new world of social media battles tracks what has been evolving for some years in federal and state courts throughout the nation. There’s been a ripening and maturation process regarding what’s fair game and what’s off limits as courts have been working out the tensions and kinks via numerous litigations. Systemically speaking, this is not an easy, calm sea to cross. Real people can be adversely affected by intrusive, fishing-expedition-like searches were courts to ignore or treat lightly privacy and other concerns. For example, social media sites may contain communications by third parties. What about the non-litigants’ privacy rights? Are they to be casualties, a kind of collateral damage in the litigants’ war? I wrote recently about strong policy factors justifying, where appropriate, protective confidentiality orders to lessen the harsh effects of broad discovery and discovery abuse. See M. Hoenig, “Privacy and Protective Confidentiality Orders,” NYLJ (Sept. 7, 2018), p. 3. Perhaps confidentiality orders need to be issued more frequently as social media disclosures expand.

Let’s not underestimate the magnitude of the overall problems. The polycentric consequences of social media discovery are enormous. Litigators entering this maelstrom need to acquire knowledge about the rewards and pitfalls of social media discovery battles. For example, this is not just an injured-plaintiff issue appearing only in tort cases. The affected litigation universe is far more vast than tort-injury litigation. All kinds of private and public disputes can be impacted. High echelon corporate and commercial litigation inevitably will invade the digital records of corporate executives and managers. And, while decisions such as Forman and Vasquez-Santos involve demands for access to injured plaintiffs’ social media communications, defendants’ attorneys in such cases should recognize that, via their broad discovery demands, they are opening the door to social media disclosure by their own clients, the defendants. It’s a two-way street; it’s not necessarily a one-direction battle.

Ethical Considerations

Then there are ethical considerations and behavioral rules lawyers must consider. So professional responsibilities accompany the waging of social media discovery battles. See R. Hedges & K.B. Weil, “Social Media and Encrypted Data in Discovery,” ABA (Nov. 15, 2016); A. McPeak, “Social Media Snooping and Its Ethical Bounds,” 46 Ariz. St. L.J. 845 (Fall 2014); John G. Browning, “Social Media Evidence: Discovery, Authentication, And Ethical Issues,” 28th Annual Labor & Employment Law Inst., Texas Bar CLE (Aug. 25-26, 2017 San Antonio); J. B. Richter, “Discovery of Social Network Data in Litigation,” Law School Student Scholarship, 554 (2014).

So, for example, Hedges and Weil (cited above) warn that attorneys should tread carefully to avoid violating ethical rules when reviewing an opposing party’s social media:

“Under the New York State Bar Association Social Media Ethics Guidelines, an attorney may review the public portion of a party’s social-media profile, regardless of whether that party is represented by counsel. Attorneys must be aware that certain social-media networks may send an automatic message to the accountholder that his or her account was viewed and by whom. In some jurisdictions such as New York, this message constitutes ‘contacting’ a party, which, if that party is represented by counsel, violates ethical rules. See NYCLA, Formal Op. 743; NYCBA, Formal Op. 2012-2; but cf. Am. Bar Ass’n Comm. on Ethics & Prof’l Responsibility, Formal Op. 14-466 (passive review of juror’s social media does not constitute an ethical violation). An attorney may request permission to review the private portions of an unrepresented person’s social-media profile, but cannot use deception to gain access. Jurisdictions differ in whether attorneys are obligated to disclose the purpose of their request. Compare NYCBA, Formal Op. 2010-2 (attorney not required to disclose reason for ‘friend’ request); N.H. Bar Ass’n Ethics Advisory Comm., Op. 2012-13/05 (attorney must inform witness of lawyer’s involvement in dispute and identify client and dispute). Of course, if a party is represented by counsel, direct contact is forbidden and any requests to view a represented party’s private social-media account should be made to the party’s attorney.”

The other articles cited above provide more on this subtopic.

We should not be surprised that discovery into social media is a “given” and the chief question mostly boils down to “how much?” Browning (cited above) reports that social networking platforms carry gargantuan communications traffic daily. In 2013, Facebook boasted over 1.2 billion users worldwide. Twitter processed 5,000 tweets a day in 2007 but that grew to over 400 million tweets a day in 2013. According to the Pew Institute, 72 percent of adults in the U.S. maintained at least one social networking profile in 2013.

Richter (cited above), additionally reports that over six billion hours of video were watched each month on YouTube with 100 hours of video being uploaded to the site every minute by December 2013. Social media websites exist primarily to foster and enhance open communication. Users are encouraged to instantaneously communicate and share information not only with their personal friends. Thus, information that was once considered private “is being broadcasted via social media to an entire world of strangers. By promoting the public exposure of thoughts, feelings, and other personal content, the fundamental nature and characteristics of social media make it a ripe treasure trove of information for attorneys in all fields of practice.”

Richter adds that all this sharing of personal information and open dialogue is recorded and sometimes stored permanently. Each posting is often stamped with a date, time and location of the individual at the time of posting. The result: Lawyers might get unfettered access to “a bevy of information that is easy to quickly collect, store and interpret.” With such information readily available at the click of a mouse, material can be found by combing through a collection of documents that can be downloaded in mere seconds. No wonder the courts have had to rush to apply existing discovery rules to rapidly advancing and groundbreaking technology.

Media Categories

Sara Anne Hook’s report for the ABA Section of Litigation: Pretrial Practice & Discovery (June 13, 2017), titled “Searching Social Media,” is quite informative. Citing sources, she observes that social media can be divided into a variety of categories:

• Social Networks (Facebook, LinkedIn and Match.com)

• Media Sharing (YouTube, Instagram, Pinterest and Flickr)

• Activity Tracking (Nike + Running, FourSquare and GHIN.com)

• Blogs and Microblogs (WordPress and Twitter)

• Social News (Digg and Reddit)

• Discussion Forums

• Comments and Reviews (TripAdvisor and Yelp)

Then, there are more recent forms of social media, such as Snapchat and WhatsApp with unique features and functionality.

To keep track of ever-emerging judicial decisions regarding social media discovery, Hook finds helpful the K&L Gates database of electronic discovery cases and a similar service through Kroll Ontrack. With such sources, one may find summaries of cases that deal with evidence from the various types of social media. Indeed, even though these cases may not discuss a particular service or vendor, “they are helpful in illuminating some of the issues with requesting, obtaining and using social media as evidence.” The writer mentions other sources such as Sensei Enterprises and Exterro. One of the author’s subtopics is called “Recovering Deleted Data.” Here she suggests that recovering deleted data often should be delegated to a digital forensics professional who has the skills and experience to do this properly using standards and best practices.

Interestingly, Browning (cited above) observes that unfortunately, “poor judgment plagues lawyers just like anybody else, and social networking sites have provided a wider audience than ever before for such lapses.” So, when lawyers communicate on those sites, they may be saying things that, later on, they wished they hadn’t. Browning advises: “refrain from posting anything on line that you would not want your opposing counsel, a judge, or the bar disciplinary authorities to see.” He also says that posting on Facebook about a trial carries consequences, regardless of whether trial has yet to start or has just concluded.

Or, for example, state bar ethics committees are looking into how far attorneys may go in advising clients about their social media postings? Can a lawyer tell the client to “clean up” your Facebook page? Can a lawyer advise a client to remove information unrelated to why the lawyer was hired? Can the lawyer advise a client on what privacy setting to use? Before litigation, does the lawyer have the duty to advise a client not to remove postings? The technological media world is moving at dazzling speed. Lawyers, used to moving slowly, as well as judges, trained to be deliberate in administering justice, are now being rushed to administer a data universe far exceeding discovery rules adopted years ago.

Conclusion

The New York decisions reported at the outset of this column are a “wake-up” call confirming the new era upon us. This article has attempted to provide the reader with some resources that can help diligent attorneys ponder the complexities of the brave new world and, not only survive, but thrive.

Michael Hoenig is a member of Herzfeld & Rubin.