#CaseoftheWeekCase LawVideos

#CaseoftheWeek Episode 10: Relevant Production of Evidence from Facebook

The #CaseoftheWeek for January 26, 2020 on the ACEDSโ€™ social channels examined when the production of evidence from a Facebook group is relevant and how the court may provide access to a non-member for discovery based on ๐‡๐š๐ฆ๐ฉ๐ญ๐จ๐ง ๐ฏ. ๐Š๐ข๐ง๐ค, ๐Ÿ๐ŸŽ๐Ÿ๐Ÿ ๐–๐‹ ๐Ÿ๐Ÿ๐Ÿ๐Ÿ—๐Ÿ“๐Ÿ– (๐’.๐ƒ. ๐ˆ๐ฅ๐ฅ. ๐Ÿ๐ŸŽ๐Ÿ๐Ÿ), ๐‰๐š๐ง๐ฎ๐š๐ซ๐ฒ ๐Ÿ๐Ÿ‘, ๐Ÿ๐ŸŽ๐Ÿ๐Ÿ.

Good morning and welcome to our #CaseoftheWeek for January 26th, 2021. I’m Kelly Twigger, CEO and founder of eDiscovery Assistant and the Principal at ESI Attorneys. We’ve teamed up with ACEDS to bring you this weekly video cast on eDiscovery case law to keep you up to date on how courts are treating ESI and to discuss the practical implications of decisions for your practice and what your clients need to be thinking about.

Each week we select a case to discuss and highlight issues in eDiscovery, how courts are assessing eDiscovery obligations, and what those decisions may mean for you and your clients. Our decisions are drawn directly from our curated database of eDiscovery decisions in eDiscovery Assistant. Our database now consists of more than almost 14,800 cases that are manually tagged by our content team with our list of eDiscovery issues for searching. This week’s case includes the issues Facebook, social media, proportionality and failure to produce.

Social media evidence has become a much more prevalent source of ESI, especially with regard to Facebook. Many of you are probably aware that you will see a lot of Facebook cases or a lot of discovery of Facebook in employment cases, but over the last two to three years, we’ve also started to see a lot of discovery of Twitter, Instagram, and Facebook in other more commercial cases. Whether it’s related to marketing, intellectual property disputes or other places where information is posted on social media.

eDiscovery Assistant’s database includes 566 cases that are tagged with Facebook and social media, meaning that they are cases that involve the discovery of evidence from Facebook, with 75 of those cases addressing Facebook evidence just in 2020. Social media evidence is often an issue with employment cases, and in those cases it can often be used to show conduct of one or the other party that most of the time is in opposite to the claims that are being asserted in the case. A lot of times we see them in employment cases where employees or former employees are asserting that they’re disabled, and then they post activities to their Facebook pages showing that in fact, they are not disabled. It’s become a rather significant issue.

Today’s decision is a little bit different on that kind of topic. It’s from the United States District Judge Nancy Rosenstengel. It’s one of seven decisions in our database that’s written by Judge Rosenstengel.

The length of the decision is in the events page on our LinkedIn page for this event. If you’re viewing this on another platform, you’ll want to pop over to the LinkedIn site, or you can drop me a message and I’ll send you the link. You can reach me on LinkedIn or @KellyTwigger on Twitter. You can also send us a message to support@ediscoveryassistant.com and just ask for the link to today’s case.

Also posted, there is a link to the University of Florida eDiscovery Conference that’s coming up on March 18th. That conference is going to be an all-day event where we’ll have a lot of practical content for you. Our theme this year is Work Smarter, Not Harder. I’m proud to be part of the planning committee there. If you grab that link and put in your email address, we’ll send you information as soon as the registration is live, which I think is supposed to be coming up next week. OK, let’s get into our case for this week.

Our case this week is titled Hampton vs. Kink. This is a decision out of the southern district of Illinois just from a couple of weeks ago, January 13th, 2021, again from District Judge Nancy Rosenstengel. The facts of this case are, frankly, a little bit hard to talk about. The plaintiff, Deion Hampton, was a transgender woman who had identified as a girl since she was five. Upon being arrested, she was incarcerated with the Illinois Department of Corrections in a men’s prison, and as you might expect, she was subjected to physical, sexual and verbal abuse within the confines of the prison, not just by prisoners, but also as alleged in the complaints, by officers.

As a result of multiple pieces of litigation, she was transferred to three different prisons. The motions in compel that are the subject of our case today are when she’s finally transferred to a third prison, which is titled Lawrence.

The plaintiff brought this civil action for violation of her Eighth Amendment rights under 42 U.S.C. 1983. She alleged failure to protect cruel and unusual punishment, and excessive force. She also made claims under the Illinois Hate Crimes Act and for intentional infliction of emotional distress.

In the decision that we’re looking at today with respect to ESI, we’re looking at two competing motions to compel, both of which seek information from Facebook.

The defendant in this case made a motion to compel posts to require the plaintiff to produce posts from her own Facebook page. What’s interesting about the plaintiff’s motion is that the plaintiff’s Facebook page is public. Those posts would already be available to the defendants to go ahead and collect without needing any additional information. The purpose of the defendant’s motion is not very clear, although given the context of the case, it seems that is likely more to require a response from the plaintiff than anything. The plaintiff’s motion to compel sought posts from what the decision calls a Facebook page titled “Behind the Walls Illinois Department of Corrections”, but then the decision goes on to say that it was a private group established in 2011 for correctional staff.

This is where it’s important to understand the difference between a Facebook page and a Facebook group. They’re largely the same, except that Facebook groups can be private and require access to be provided by the moderator. Where that’s the case, you can’t have access to any of the information in that Facebook group unless the moderator lets you into the group. There’s a discussion here about who has access to that group and who does not.

That is completely different from a Facebook page where you can also have access issues depending on the privacy settings that a user has put on their Facebook page. In this particular case, the plaintiff’s page was public, there were no access issues, and the defendants could have gone ahead and collected whatever information they wanted from the plaintiff’s Facebook page.

Both parties put a date requirement on the data to be collected, which was from January 1st, 2018 to the present. That was an appropriate narrowing of the data that was requested.

Let’s talk a little bit about the defendants’ motion to compel. The defendants’ motion to compel sought posts from the plaintiff’s Facebook page, which referenced her litigation, her mental and medical health treatment and her gender identity. Plaintiff objected on the grounds of relevance and proportionality that the request was unduly burdensome and that it was meant to harass her. Which, given that the page was public, seems like it might have had some teeth.

Defendants argued that the documents were relevant because Hampton’s gender identity and her mental and medical health treatment were a central issue in the case, because she alleged intentional infliction of emotional distress, and that the post would show lasting effects of the defendant’s actions, as well as how she was treated by defendants and her vulnerability while in prison.

The plaintiff countered that her gender identity was NOT relevant because the parties don’t dispute her gender identity. Those posts occurred after her release from prison and that she still identifies as female, and that all of her posts reference her identity, showing her choice of clothing, hair, makeup, accessories, lots of these attributes that would identify her gender. In addition to that, as we mentioned a few times, the plaintiff noted that her page was public and that the defendants could basically have whatever they want.

In terms of the analysis, the court looked at the scope of what the defendants were requesting and applied a concept of relevance. That’s our whole standard here; what is relevant to the litigation at hand. The court found that the defendant’s request for the plaintiff’s gender identity posts encompassed all of the content on her Facebook page and was over-broad. Otherwise, the court found that the defendant’s requests were not burdensome and that all plaintiff needed to do was to provide the defendants her Facebook handle or essentially the URL to her Facebook page, in order to be able to collect whatever posts it deemed relevant based on the court’s ruling. That’s a little bit ironic because clearly the defendants already had her Facebook page based on some of the allegations that are in the decision.

With regard to the plaintiff’s motion to compel, there were really three separate issues that plaintiff raised on her motion to compel. First, she compelled the defendants to produce Facebook posts, comments and reactions pertaining to her specifically, other transgender inmates or made by specific defendants from the private Facebook page titled Behind the Walls Illinois Department of Corrections. That’s a very specific request that was made.

The second piece of the motion to compel asks defendants to produce the same information from their personal Facebook accounts and to include post comments and reactions pertaining to her or any transgender inmate and related activity logs dating back to the same date range January 1st, 2018.

The third part of plaintiff’s motion to compel asked that, with regard to both of those requests, that the court order counsel to conduct a search of ESI on behalf of the defendants and determine what information is subject to this order before producing it. Essentially she’s asking that the lawyers do the search and not allow the defendants to do the search and provide the information to the lawyers.

Now, with respect to the Facebook posts, there’s some discussion about what information is available to the defendants, whether or not they were members of the group, at what point they were members of the group, and whether or not they still have access to the Facebook group. We talked about this a little bit. The group’s posts are only available to group members, and the reason that the plaintiff knew about this group was because an anonymous source had sent her some posts from the group. Those posts that she received, some of which were about her and some of which were about other transgender inmates. In asking on her motion to compel for the specific Facebook information, she was able to show that she already had posts from that group that established the relevance of the information that was available there.

That’s a really important point here and as you’re making motion to compel information, you’re going to want to be very specific about what you’re asking for and to the extent you have any evidence that information would be posted there, you’re going to want to present that to the court.

The samples that she had discussed her and were, as she alleged, homophobic, racist, transphobic and demeaning. She requested from the defendants that they give the information again back to the same January 1st 2018, that they were related to her, related to transgender prisoners and were, in fact, posts made by defendants. She was very specific as to exactly what it was that she was asking for. Those are the three things that counsel would need to look for as they went through the posts.

There was a discussion about whether or not the defendants had access to the group, but ultimately, according to the court, the defendants admitted that multiple of the defendants had access to the group. Therefore collection of the information should not be an issue. The plaintiff also noted that the posts were relevant and limited in time and scope and that she specifically sought posts, as we mentioned, subject to those three topics. She showed the sample of those posts to the court. She knew that there were similar posts about her or other inmates that were on the page and that they were directly relevant to the issues of the case.

I want to make one other point. What’s specific about what the plaintiff asks here that the defendant does not is that she asks for comments, posts and also reactions. Those are important because as a user on Facebook, I can like a post but not provide a comment or not have it show up on my individual page, and therefore, I’m still, from an evidentiary perspective, showing that I’m in favor of the thinking on this post without having that information reflected on my own personal page. Sometimes that information will show up in a feed and sometimes not depending on the algorithm or how the group is set up.

What was the analysis here? The court essentially ordered based on relevance, that counsel must perform a search of ESI contained on the private Facebook page “Behind the Walls Illinois Department of Corrections”, which could be accessed by multiple defendants and produce any posts mentioning Hampton, mentioning any transgender prisoner or transgender prisoners in general or that were posted by any defendant (posted by any defendant is also important because that’s going to show a pattern of behavior) by the same deadline.  The courts required that they perform an ESI search of each defendant’s individual Facebook page and produce any posts or comments from January 2018 through the present, again, mentioning Hampton, any transgender prisoner or transgender prisoners in general and search each defendant’s activity log and produce a list of any activity, including posts, comments or reactions pertaining to Hampton or transgender prisoners from January 2018 through the present.

There’s not a ton of analysis in this case about whether or not everything is relevant. Of course, it really seems on its face to be per say relevant, but there’s no real analysis of that relevant continuation from other decisions that we’ve seen where the courts will go in and do a breakdown of exactly what relevant means and how it’s relevant to a particular issue. The court’s just very conclusory here in determining relevance.

What are our takeaways? I think what’s really important here is that this case does not address in any way, shape or form the novelty of collecting information from or seeking discovery from social media. It’s as if in this case, and I think that it’s pretty widely considered this way, that Facebook is an accepted source of ESI. What does that mean? It means that you, as someone representing your client, needs to be aware of how the different parts of Facebook work, how Facebook groups work, how you need to collect information from Facebook, and how you’re not only going to collect it, but you’re going to identify it, then collect it, then produce it and then authenticate it. All four of those things need to be considered when you’re dealing with social media.

Preservation, of course, is also another issue. That’s for another day and another topic that we’ll cover.

The parties need to be very specific when you’re asking for information from social media about each request, for example, in this particular case, the defendant asked for all posts related to the plaintiff’s gender. The plaintiff said every single post on my page is related to my gender. I’m a transgender woman. That’s what my Facebook page is all about. The court recognized that and narrowed it. You need to be sufficiently narrowing your request from social media.

The plaintiff, on the other hand, made specific mentions. She wanted posts about her, posts about any transgender prisoner or any posts that the defendant specifically made in that one group. When it came to the defendants’ individual pages, she asked for posts about her or posts about any transgender prisoner. Those specifics are really going to be important if you’re going to be able to win on a motion to compel.

I mentioned this earlier, but given that the plaintiff’s page was public, it didn’t seem like a motion to compel was needed here. In general, when you’re collecting social media, the issue is access to the platform. With respect to Facebook, if you’re collecting from the archives, you’ll need more information than just the handle. If you’re collecting from a public page, you can collect from that public page without having any other access other than knowing the site that you’re collecting from.

One other piece of information with regard to social media, this decision coupled with probably the other 566 that are included in our database and 120 from last year, make it pretty clear that information from Facebook, if relevant, is going to be discoverable. If you’re trying to take a blanket position at any point that your social media accounts, social media accounts of your client, whether they’re an entity or an individual, are not relevant, that’s going to be a very difficult position to take without being able to show content.

Now, let’s talk a little bit about some collection and authentication issues with regard to social media. This is not something that you want to wait until the last minute to do. One, because you’ve got preservation issues. Facebook accounts generally, if they’re deleted or if content is deleted, it’s available on the server for 14 days. But once it’s deleted by a user, it’s no longer available to be able to be seen and collected. It would have to be restored.

Preservation of that and collection of social media out of the gate is going to be really important for purposes of your case. We’ve had cases where opposing parties have completely altered the existence of the account. Changing the name of the account, changing the name of the profile in order to be able to change up the whole authenticity of the account, so early preservation to be able to keep what you know exists at the time of litigation is pending is going to be really important.

You’ll want to make sure that when you’re collecting, you’re using tools that collect metadata. In this particular case, the plaintiff is going to want to use the social media posts to create a timeline of conduct and behavior as it’s associated with things that happen to her within all three of the prisons. Having the metadata about when each one of these posts was made, who made it, who liked it, who commented on it, those are all pieces of metadata within Facebook posts. Make sure that you’re working with either your forensics team or with a tool that’s going to collect all of that information.

Each post should be captured separately, but also preserved in a way that a juror can see the context. If you think about being able to present the social media evidence at trial, you need to be able to say to a juror, “Here’s a Facebook post and this Facebook post looks exactly like you would expect a Facebook post to look.”

If you are familiar with the ability to download your own Facebook profile, when you do that from your settings on Facebook, the content is all broken up. Your photos are broken up from the text associated or the comments associated with them. You get an HTML version of the download, therefore it’s not conducive to being able to use that information from a trial perspective. The collection of social media needs to be done with a view towards presenting it at trial and also with a view towards authentication. What are the pieces that you’re going to need to use for authentication? That’s a topic that we’ll cover in another case, but it’s come up a lot. We have a lot of cases in eDiscovery Assistant dealing with social media authentication. There are a number of times when that comes up in the criminal context because criminals tend to post about their criminal behavior on Facebook, but it is very important, and because we’re starting to see a lot more social media in complex commercial litigation, the authentication of that social media evidence is an important and key issue that you’ll want to pay attention to.

That is our #CaseoftheWeek for this week. Thanks for joining me. I’ll be back next week with another edition of our #CaseoftheWeek. Please remember to sign up to receive information to register for the UF Conference. If you’re viewing this live and want to be able to share it with some of your colleagues, please do. Otherwise, this issue will be transcribed, and the video will be available on our blog at eDiscoveryAssistant.com/blog this Thursday.

Have a great week. Stay safe and healthy and we’ll see you next week. Thank you.

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