A simple internet search will reveal numerous legal journals and web publications regarding the growing role social media plays in modern civil litigation for both plaintiffs and defendants in tort claims. Even a recent Georgia appellate decision recognized Facebook as “one of the most popular social networking websites” that allows registered users to customize published content to relate to the user’s interest and share photographs with other users. See Smith v. State, 335 Ga. App. 497, 498, 782 S.E.2d 305 (2016). With the growing familiarity of social media among the general public, many litigators utilize social medial as the latest “acceptable” method to surveil injured plaintiffs. One out of ten lawyers will have a story of the Perry Mason moment when he cross-examined or impeached a plaintiff with a photograph or video of a dancing, jovial plaintiff who attempted to present a case in discovery of permanent physical impairment caused by the negligent defendant. However, to properly utilize the evidence presented through published social media content, litigators must reconcile social media evidence with the general principles of litigation management and case preparation.
An important part of the initial fact investigation of a personal injury claim is to determine the extent of a plaintiff’s injuries and the liability exposure faced by a party. Large jury awards stem not from a hard calculation and reimbursement of a parties’ special damages, but rather from the fact finder’s subjective assessment of the proper award of past, present or future pain and suffering. Social media provides an observer a party’s own published chronology of his pre and post-accident condition. By its very nature, an individual’s online autobiography can provide tangible and objective evidence of the impact or non-impact of a party’s negligent conduct. For social media to have any notable impact on the investigation and outcome of a claim, the uncovered evidence must be relevant and admissible through proper authentication.
To be admissible in federal court, social media or other similar online postings must be authenticated under Rule 901 of the Federal Rule of Evidence or be shown by a preponderance of the evidence as an admission under Rule 801(d)(2)(A). U.S. v. Hassan, 742 F.3d 104 (4th Cir. 2014). Under Georgia law, there are no special rules governing the authentication of electronic records such as emails or text messages. Glispie v. State, 35 Ga. App. 177, 184, 779 S.E.2d 767 (2015). Such content falls under the standard rules for authentication and party admissions, i.e. the court will admit such evidence if a reasonable jury could find that the evidence is what it is claims to be.
While Georgia recognizes the discoverable nature of social media content, discovery requests for such information is not limitless. Social media content is not privileged or protected by a right of privacy, but a requesting party must still demonstrate that discovery requests for such information are reasonably calculated to lead to the discovery of admissible evidence. Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346, 1347 (M.D. Fla. 2014). Further, discovery requests for the production of social media posts must have demonstrable relevance to the pending action, or be excluded as beyond the scope of permissible discovery. Jewell v. Aaron’s, Inc., No. 1:12-CV-0563-AT, 2013 WL 3770837 (N.D. Ga. July 19, 2013). For example, a discovery request for social media content in a case where the plaintiff’s physical condition is not in controversy can be stricken as beyond the scope of permissible discovery. Id. Further, evidence to support a belief that social media messages contain a party’s admission must be demonstrated to transform social media messages into discoverable information. Palma, 18 F.Supp.3d at 1348. Courts as the mediators in discovery disputes recognize that even though social medial content may be available for public view, discovery rules do not grant a requesting party a generalized right to rummage at will through information that the responding party has limited from public view. Jewell v. Aaron’s, Inc., 2013 WL 3770837, at *3. Accordingly, a requesting party must meet a threshold showing that the information sought in its discovery requests is reasonably calculated to lead to the discovery of admissible evidence.
An initial investigation of a personal injury claimant’s presence on social media can also streamline discovery requests to include items known to relate to the facts at issue in the pending litigation. Examining a claimant’s published social media posts at the outset of the litigation can be incorporated into litigation hold letters to preserve posting histories and content to prevent spoliation. A simple catalog of the number of social media postings existing at the initiation of a claim, which decreases during the course of discovery, can be utilized to support spoliation sanctions against an at fault party. In Allied Concrete Co. v. Lester, a plaintiff faced $180,000.00 in sanctions for the deletion of his Facebook page and posted photographs proven to have existed by the defendant’s retention of printed copies of the social media content it sought from the plaintiff who attempted to deny its existence. 285 Va. 295, 736 S.E.2d 699 (2013).
While social media content is a prevalent and widely accepted method of communication in daily life, to have any impact in civil litigation it must be treated and examined as any other type of electronically stored information. Relevance and admissibility must remain the focus of any investigation of a party’s pre-loss online history.
Dawn N. Pettigrew