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Access to Insured’s Social Media Accounts: No Friend Request Necessary

The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.

Rick Bortnick

Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.

Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.

In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.

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Keep Your Friends Close, But Your Facebook Posts Closer

“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!

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Facebook: Everything You Want To Know and More… Just a Discovery Request Away!

I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.

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Ensuring Discovery Compliance: Sanctions Relating to Past, Present, and Future Adverse Parties

First published on September 22, 2011 at e-Discovery Law Review
Monetary sanctions, attorneys fees, and adverse inference jury instructions are the more common type of sanctions imposed on litigants for the spoliation of evidence, or not producing relevant documents. Recently, however, a court has increased the severity and impact of sanctions by applying them not only to current litigation, but also to a party’s future litigation, with the effects lingering for years to come.

The Underlying Suit

“Any competent electronic discovery effort would have located this email.” These words were written in an opinion by a United States District Judge in the Eastern District of Texas in Green v. Blitz U.S.A., Inc., No. 2:07-CV-372 (E.D. Tex., Mar. 1, 2011) Green involved a product liability suit in which the requirement of a flame arrester was in dispute. The jury returned a defense verdict, and the plaintiff collected a low settlement amount as part of a high-low settlement agreement. During discovery in a subsequent case with the same defendant and plaintiff’s counsel, counsel learned of documents that were not produced in Green. The plaintiff then filed a motion for sanctions against the defendant in Green and a motion to re-open the Green case. While the court denied the motion to re-open because the statute of limitations had expired, the court did impose sanctions for the discovery abuse.

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Discovery in the Age of Cloud Computing

During the last decade, individuals and business have changed the way they manage their data by moving this data management offsite – otherwise known as cloud computing. This differs from the old model of information management that, more or less, mirrored the pre-computing era, meaning that an employee’s file might be kept in a cabinet in a Human Resources (“HR”) office or stored on a company’s in-house server. With cloud computing, however, that same employee file may be stored hundreds or thousands of miles away from the HR officer who needs to review it – or the IT officer tasked with preserving that data for potential litigation.

As discussed more fully in Rick Bortnick’s prior posts (here and here), cloud computing outsources data and software management, migrating it from the local to the global by providing instant access over the internet. According to the National Institute of Standards and Technology, cloud computing has five primary characteristics: (1) “on-demand self-service,” or the ability to call up stored data or capabilities as needed; (2) broad network access through a variety of platforms; (3) pooling resources providing “location independence”; (4) “rapid elasticity” in the distribution of computing capabilities, and (5) “measured service,” or service-appropriate control and optimization by the cloud system manager rather than the local user. It is the pooling of resources and the measured service managed by third-parties that pose the greatest risks during e-discovery.
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Facebook Subpoena Information – Here It Is!

facebook_picSo you want to get production of documents from Facebook to assist you in your civil case. How do you go about it? We asked and Facebook answered.

Well, first off, you are going to need a court order (subpoena) to obtain the information. In the U.S., Facebook users’ data is protected by the Electronic Communications Privacy Act (“ECPA”). See 18 USC section 2701 et. seq. ECPA is a federal statute that prohibits Facebook from producing any “content” without notarized user consent or a Search Warrant. Facebook’s Law Enforcement Response Team has advised that, with regard to civil matters:

  • State Court Subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission.
  • Federal Civil Subpoenas seeking the production of documents must issue from the court in the district where the production is to be made.

The subpoena should be sent to subpoena@facebook.com or faxed to 650-644-3229.

Facebook states that it requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.

In addition to a valid subpoena, Facebook advises that as much of the following information as possible should be provided in order to expedite a request:

  • Your full contact information (name, physical address, phone and email)
  • Response date due (please allow 2-4 weeks for processing)
  • Full name of user(s)
  • Full URL to Facebook profile
  • School/networks
  • Birth date
  • Known email addresses
  • IM account ID
  • Phone numbers
  • Address
  • Period of activity (specific dates will more likely expedite your request)

It takes Facebook approximately 2-4 weeks to respond to questions from law enforcement agencies or legal representaives about the status of these requests. If Facebook is informed and has a good faith belief that the matter is an emergency regarding potential threat of serious bodily harm or threat to life (see Title 18 United States Code section 2702(b)), they generally respond within 24 hours.

Facebook advises that if you are not a member of a Law Enforcement Agency or Legal Department, you will have to contact Facebook through their Help Page or have your local law enforcement or legal representative contact them. Some other helpful Facebook links are as follows:

Facebook Help Page: http://www.facebook.com/help

Facebook Terms of Use: http://www.facebook.com/terms.php

Hacked/Phished Facebook Account: http://www.facebook.com/security

Facebook Safety: http://www.facebook.com/safety

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