If you were born in the 1940s or 1950s and have a cell phone, all you care about when the phone rings is that someone is on the other end when you answer it. You might send a text message or an email and even be so bold as to take a picture and forward it to someone.
However, fast-forwarding to the 21st century, there are all kinds of electronics and digital platforms that provide hiding places for what may be considered substantive information pertaining to allegations made by a plaintiff in a complaint. These days, people broadcast almost everything about their lives via social media: their blessings, dirty laundry, and the facts of a case.
Common social media channels, such as Facebook, Twitter, Instagram, YouTube and MySpace are not static and do not stick with a particular age group. But there may be social media channels you have never encountered before. A good practice is to bounce the facts of your case off of the younger lawyers and staff in your firm to get up to speed on the latest, greatest electronic devices where information can be stored and hidden.
At least three approaches can be taken regarding social media-based information capture and preservation during the initial stages of a lawsuit:
- Forward a preservation letter regarding all social media being used by the claimant.
- Consider the fact that courts require preservation the minute written discovery is propounded to a claimant.
- Take the deposition of the claimant and inquire about what social media is used and whether or not they have communicated either facts or medical information with that media.
- Ask questions about the kinds of communication utilized:
- How is it saved
- Has any of it been deleted
At the close of the deposition, request, on the spot, that this information be preserved. Courts have discussed plaintiff’s duty to preserve such information.
What is posted publicly is easy to access. The trick is obtaining private social media postings. Courts have not been inclined to allow discovery of user login information and passwords. There must be a reasonable showing and request calculated to lead to the discovery of admissible evidence before gaining access to private social media details. The request may be based upon deposition testimony or interrogatory answers. The request may be based upon what is accessible to the general public in the form of, for example, Facebook, that contains information that is contrary to either deposition testimony or interrogatory answers. Showing what is displayed publicly may bolster your argument for gaining access to private social media postings, because what is displayed publicly may be inconsistent with the claimant’s allegations in the case.
If the discovery of private social media postings is allowed, the court has, in the past, made the plaintiff, or plaintiff’s counsel or an independent third-party review the materials so that only that which is relevant is produced. Our recommendation would be that you request that the court appoint an independent third party to conduct the review.
Monitoring social media channels can be very time consuming. You have to count the costs to see if the case warrants the monitoring of such potential discovery. You may want to consider the use of new social media and web collection vendors that tout a single interface and claim to be able to crawl, capture and do instant search.
The value of such a vendor includes:
- Automatic retrieval of postings
- Capture that may be later deleted
- May be more cost effective
- Some vendors may have the ability to authenticate the postings
In addition to social media channels, you should also consider personal electronics and other paraphernalia that record different types of information. Take for example the FitBit. The latest advertisement for the Fit Bit boasted six models – plain or designer. The FitBit can be downloaded into your computer or synced to a smartphone app. Depending on the model, it has the ability to record steps taken, calories, distance, sleep and activity tracking, steps climbed, heart rate, caller ID, text notifications and GPS tracking. You can also journal your thoughts on a FitBit.
Other sources can include gym records, cell phones and surveillance cameras. Many gyms require an access card to record your attendance and maintain electronic records on what machines are used and the progress made during workouts. Cell phones have all kinds of information on them, including apps that can operate things remotely from your phone. They can record photographs, text messages, calls made, GPS location, etc.
There are surveillance cameras everywhere – both stationary and mobile. The Boston Marathon bomber was essentially tried by evidence procured from surveillance cameras. In the case of mobile surveillance cameras, you also have to ask the question what cameras may have been present but are now gone. For example, a recent car accident involving Bruce Jenner in Los Angeles featured several different renditions of how the accident happened from the perspectives of the various drivers involved. However, there was a mass transit bus coming from the opposite direction that had two dashboard cameras. These two dash cams recorded the entire accident.
Sometimes you have to think outside the box. For off-road vehicles, farm tractors and other off-road engine-powered machines, you may want to walk the trails ridden and check for deer, elk and turkey cameras. They may have recorded your plaintiff on the product he claims is defective.
When requesting photographs, ask for native format, which would include JPEG or MPEG. These will provide better clarity. Photographs in native format can contain potentially vital information, such as what kind of devise was used, F-stops, flash or no flash, date and time, and GPS location. Something as simple as a date and time on a photograph can move your client from being the target to a non-target.
Electronic control modules in tractor trailers and automobiles provide a wealth of information with regards to a particular accident. If the tractor trailer or allegedly defective automobile is old, do not automatically discount the possibility of the presence of an electronic control module. Conventional wisdom suggests that if an airbag does not deploy in an accident, there will be no recording on the electronic control module. However, if the impact is sufficient enough and the airbags do not deploy, it may still record an event. This could be particularly useful in a single-vehicle accident where the vehicle is struck from the side with sufficient force and the airbags are not deployed.
You may also want to consider a 3D laser scanner in the case of an allegedly defective automobile or other engine-powered vehicle. A 3D laser scanner shoots 10,000-20,000 points and can provide a 3D image of the vehicle from which measurements can be made. This will provide information regarding the vehicle’s speed, orientation and direction of travel at the time of impact.
Very briefly, Rule 34 allows a party to make a request specifying the form or forms in which electronically stored information (ESI) is to be produced. In massive document cases, discuss your approach with the client first. If the client is insistent on engaging in electronically stored information discovery because they do it in every case, you may want to revisit this and run the string out on such an approach. Be careful what you ask for; you will get the same request in return.
The following is a suggested approach in large document-extensive cases:
- Take it up with the judge. If all parties are amenable, put together a protocol, submit it to the judge by agreement, and get an order entered that sets the table for discovery. The court will love you for taking the lead. In smaller, more rural venues, judges simply do not want to deal with this.
- File a request and see what you get in the way of hard copy documents. Hand pick certain documents and then request only those documents in native or searchable format. Native or searchable format provides metadata providing such things as when the document was created, modified or last accessed. Excel spreadsheets produced in PDF format are not really useful. For example, your consultant cannot use and sort through the document.
- Before engaging in ESI discovery, you may want to consider discussing it with a vendor who is very knowledgeable about the process. You will want to vet the vendor to ensure that the information you are trying to obtain is not compromised or spoiled during retrieval. Utilize this vendor for proper terminology to formulate an effective request. The vendor may also assist in rebutting the argument that the request is simply too onerous.