Posts Tagged ‘discovery’

Florida Federal Court Weighs in on Social Media Discovery

Ethan Wall | December 2, 2013 in Social Media Law & Order | Comments (0)

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In Davenport v. State Farm Mutual Insurance Company, 3:11-CV-632-J-JBT, 2012 WL 555759 (M.D. Fla. Feb. 21, 2012) the defendant in a personal injury action requested “[a]ll photographs posted, uploaded, or otherwise added to any social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com, or any similar websites posted since the date of the accident alleged in the Complaint.” The scope of the request included “photographs posted by others in which Chelsea Davenport has been tagged or otherwise identified therein.” The plaintiff objected to this social media discovery as irrelevant, overly broad, and as improperly invading the plaintiff’s privacy since certain social media content was hidden from the defendant’s (and the public) due to her privacy settings. 

In considering whether the compel the plaintiff to turn over her social media evidence, the court reasoned that social media content is generally “neither privileged or protected by any right of privacy.”  But, “[a] request for discovery must still be tailored, however, so that it appears reasonably calculated to lead to the discovery of admissible evidence” in order to prevent the defendant from engaging “in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social media] account[s].”

Initially, the district court determined that the request, as phrased, was overly broad since it was “not limited to photographs taken of, or even by, the Plaintiff” and therefore could be read to include “every photograph posted on any [social media site] in the world” since the date of the accident. However, since “Plaintiff’s physical condition” and “quality of life” were issues in this case, the court “order[ed] Plaintiff to produce any photographs depicting her, taken since the date of the subject accident, and posted to a [social media site], regardless of who posted them.”  The plaintiff was therefore required to produce photos that other social media users “tagged” her in, since those photos would be within her possession custody and control.

The Davenport court seems to strike the appropriate balance between providing relevant discovery of the plaintiff’s injuries on the one hand, and preventing access to over broad information about the plaintiff’s personal life on the other. Interestingly, this court did not require the defendant to demonstrate that it had reason to believe discoverable information may exist or her profile – by, for example, presenting evidence obtained from the”public” portions of her profile – as other courts have required prior to allowing discovery into private social media content. 


Twitter Challenges Another Subpoena Directed at Occupy Activist

Ethan Wall | May 17, 2012 in Social Media Law & Order | Comments (0)

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Twitter is resisting an attempt by prosecutors to gain access to the message history of a writer and activist who was arrested during Occupy Wall Street protests last fall, Boston.com reports

The micro-blogging service filed court papers Monday asking a judge to quash a subpoena in which the Manhattan district attorney had ordered it to produce months-worth of old tweets, now deleted, that had been posted by Malcolm Harris, who was among 700 people arrested on the Brooklyn Bridge during a march on Oct. 1.

Prosecutors argued that these tweets might show whether Harris was aware that police had ordered demonstrators not to march across the bridge.  Harris unsuccessfully tried to fight the subpoena on his own. A New York judge ruled that Harris lacked standing to fight the subpoena because he did own the tweets, Twitter did.

Judge Matthew Sciarrino wrote in his April decision that once Harris posted his messages they became the property of Twitter and that any constitutional protection he had over their disclosure disappeared:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical ‘home’ on the Internet,” Sciarrino wrote. He also reasoned that Twitter was free to redistribute its customers’ tweets “to anyone, any way and for any reason it chooses.”

Twitter contends the judge misunderstood how its service works, claiming that Twitter users do not relinquish ownership of their messages or photos by posting them on the service. Twitter also argued that the federal Stored Communications Act provides Twitter users with standing to challenge demands for their account records. A decision will be forthcoming.

This is not the first time prosecutors have sought Twitter account information from “occupy” activities.  In January, a Massachusetts prosecutor subpoenaed the Twitter records of an Occupy Boston activist, as well as records linked to two certain “hashtags” (#BostonPD).  A CNN correspondent interviewed me to comment on the subpoena – and published the following:

Subpoenaing Twitter records is becoming more common, according to lawyer Ethan Wall, of the Richman Greer law firm in Miami. Wall, who specializes in intellectual property litigation, said the practice could have “a chilling effect on free speech.”

“We are in this information-accessible age where we can post anything and everything from anywhere on any device,” Wall said. “Because it’s so easy I don’t think that people put the thought into how this might affect them personally, professionally or legally.”

This is just one example of how the line between privacy and accessibility is blurring in the age of Internet communication. Stay tuned, as I will survey this issue on the blog over the coming weeks. 


Judge Refuses to Quash Subpoena of Twitter Accounts Linked to Occupy Boston

Ethan Wall | January 3, 2012 in Social Media Law & Order | Comments (1)

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A decision by Massachusetts prosecutors to subpoena the Twitter records of an Occupy Boston activist, as well as records linked to two Twitter hashtags, has free speech advocates up in arms, calling the move a violation of the First Amendment CNN reports.

Suffolk County prosecutors demanded that Twitter hand over information posted on the social media website by user “Guido Fawkes,” whose Twitter handle is @p0isAn0N, as well as information from the user behind @OccupyBoston and those who Tweeted #BostonPD or #d0xcak3, according to the document.

In the subpoena, which was issued on Dec. 14, prosecutors requested that Twitter release to them “all available subscriber information,” including IP address logs for the time period between Dec. 8 and Dec. 13 as part of an “official criminal investigation.”

Those dates coincide with clashes between protesters and police in Boston’s Dewey Square. Dozens of protesters were arrested after refusing to leave the public space after being ordered to do so by Boston’s mayor, Thomas Menino.

Subpoenaing Twitter records is becoming more common, according to lawyer Ethan Wall, of the Richman Greer law firm in Miami. Wall, who specializes in intellectual property litigation, said the practice could have “a chilling effect on free speech.”

“We are in this information-accessible age where we can post anything and everything from anywhere on any device,” Wall said. “Because it’s so easy I don’t think that people put the thought into how this might affect them personally, professionally or legally.”

A Suffolk County Superior judge held a private hearing Thursday and impounded all documents pertaining to the case. Following a sidebar with counsel, the judge overruled the objections to the subpoena.

A CNN correspondent contacted me over the holidays to comment on the subpoena prior to the court issuing its ruling.  This is not the first time Twitter records have been subpoenaed in high profile cases. In March 2011, the U.S. Department of Justice served a subpoena seeking the identity of the founders and supports of WikiLeaks.  As more people flock to Twitter to comment on their personal, professional, and political lives – I foresee more subpoenas directed at this type of information in the future.


Judge Creates Facebook Profile to View Plaintiff’s Facebook

Ethan Wall | December 6, 2011 in Social Media Law & Order | Comments (0)

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Judges are often faced with the difficult task of juggling privacy interests with a party’s need for discovery of evidence. In the context of social media evidence, that difficulty is magnified because many litigants use social media to chronicle the intimate details of their personal lives, often behind a virtual wall of privacy features. Therefore, a judge who orders that social media information be turned over runs the risk of exposing a litigation’s private information that would previously be cloaked under a certain expectation of privacy. A unique solution to this dilemma was recently offered in Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

In Barnes, the plaintiff sued for injuries suffered at the infamous Coyote Ugly Saloon after slipping, falling, and striking the back of her head.  Coyote Ugly subpoenaed the plaintiff and her friend’s Facebook pages for information including any photos depicting the plaintiff dancing atop the bar.  After quashing the subpoenas for privacy and enforcement considerations, the Nashville judge crafted a novel solution to balance the parties’ competing interests in determining whether discoverable information exists while at the same time protecting personal privacy concerns:

the judge created his own Facebook account “for the sole purpose of reviewing photographs and related comments in camera [in the judge's private chambers]. . . and disseminat[ed only] relevant information to the parties.”

Upon reviewing and disseminating the relevant information, the judge closed his Facebook account. This decision, in addition to the exchange of Facebook passwords to the opposing parties’ attorney discussed yesterday, are two recent examples of the judiciary composing creative solution to unique problems created by evolving social media activity.