Metadata Meets Facebook E-Discovery
The recent trial court decision in Hinshaw & Culbertson, LLP v. E-SmartTechnologies, Inc.,1 serves as notice that electronically stored information (“ESI”) already produced, albeit in electronic form, may be required to be reproduced if the ESI did not contain meta-data. Discovery of social media is now commonplace, and New York courts are having to determine whether the information posted on a party’s Facebook site is “material” and “necessary” to an action. The analysis of what is “material and necessary” requires a careful examination of whether counsel has established a factual predicate for compelling the disclosure of “personal” ESI, and recent decisions highlight the often record-insufficiency of such foundation.
Material and Necessary
In Hinshaw, plaintiff law firm sought production of defendant’s metadata on the ground that defendant’s principal had allegedly altered highly relevant e-mails. Defendant denied this allegation, but offered to produce its metadata if plaintiff law firm produced the metadata associated with its own production. Plaintiff had not previously objected to the discovery of its own metadata, but argued that it did have to produce ESI in native form because defendant could “not make a threshold showing that [plaintiff] altered any documents.”
The court rejected requiring such a showing, and directed both parties to reproduce its electronic document production in a form that included metadata, stating that
[c]ontrary to [plaintiff’s] contention, there is no authority that any additional showing, that the electronic document has been altered or fabricated, is necessary before the production of metadata should be ordered by a court.
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As the Appellate Division, First Department noted in Tener v. Cremer (89 A.D.3d 75 [1st Dep’t 2011]), discovery of [ESI] is commonplace, and there are court rules that address its retention and production. The considerations about whether metadata should be produced, however, are the same standards that apply to production of all discovery in a case. The salient considerations are whether it is material and necessary in the prosecution or defense of an action. CPLR §3101(a). Disclosure of meta-data is required if it “bears on the controversy and will assist in preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.”
In ordering reproduction of the ESI with metadata,2 the court explained that:
[w]hile certainly metadata is discoverable to determine if and when documents have been altered, that is not the only reason for production. General information about the creation of a document, including who authored a document and when it was created, is pedigree information often important for determining admissibility at trial.
The Court further explained that although plaintiffs clearly required electronic information with metadata, no timely objection was ever raised and there was no valid reason raised as to its production. Therefore, the court concluded, both parties were obligated to reproduce the ESI they originally produced, but this time in a format that included the metadata.
Finally, it needs to be noted that, in citing to the recent First Department decision in US Bank Nat’l Association v. Greenpoint Mortgage Co.,3 the court held that, as neither party raised an issue about cost allocation, the producing party would bear the cost of reproduction.
Courts are directing that Facebook information be produced, where an adequate foundation has been made that such information is material and relevant to the action.4 In Loporcaro v. City of New York,5 the trial court ruled that “the moving defendant has sufficiently shown that information contained within plaintiff’s Facebook account may contain information that is relevant to the claims made with regard to the effects of his injuries,” including plaintiff’s claim of incapacitation and confinement to bed or home during the first two months following the accident, as well as its permanent effects on his daily life. In so ruling, the court reasoned:
When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public.
The court noted that present discovery statutes do not allow that the contents of accounts such as Facebook should be treated differently from the rules applicable to any other discovery material, and that it was impossible to determine at that point whether any of the disclosures made on Facebook might prove relevant to rebut plaintiffs’ claims regarding the permanent effects of his injuries. Therefore,
[s]ince it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery. Therefore, granting [defendant] access to portions of plaintiff’s Facebook account, including access to certain deleted materials, may well prove relevant and necessary to the defense.
In Diana v. Manfre,6 a business dispute, the individual plaintiff demonstrated that, after he regained access to the corporate plaintiff’s offices, he had been locked out of the company’s website, corporate passwords had been changed, and the company’s Facebook page had been deleted. The court, after holding a preliminary injunction hearing, directed defendants to immediately provide to plaintiff the passwords to the company website, Facebook page and e-mail accounts.
In Newman v. Johnson & Johnson,7 plaintiff’s decedent passed away following use of a non-prescription topical medication, and defendant’s defense was that the decedent likely ingested the medication and committed suicide. In response to defendant’s motion to compel production of decedent’s Facebook content and e-mails during a specified period, and plaintiff’s cross-motion for a protective order, the court held that such documents should be produced for in camera review by a special referee to “make a determination as to whether such information is subject to disclosure and identify specific information that is discoverable.”8
However, where the appropriate showing of materiality and necessity is not made, courts will not order production of social media ESI. In Temporino v. TurnerConstruction,9 defendant in a personal injury action sought plaintiff’s Facebook records after seeing the public portion of plaintiff’s account, including a photograph of plaintiff. As Facebook is located out of New York, defendant moved for an open commission to permit the issuance of a document subpoena. The court found that defendant failed to proffer what, if anything, was contained in the Facebook account that was “relevant” to the issues, and “the mere claim that plaintiffs were members of Facebook, in and of itself, is not a sufficient basis to require the issuance of a commission.” In other words, courts will not permit a “digital fishing expedition” into social media sites “based on the mere hope of finding relevant evidence.10
In O’Neill v. Weber,11 defendant served plaintiff with a notice to admit, with each proffered admission relating to plaintiff’s use of social media websites such as Facebook and Twitter. The court struck the notice on the grounds that, among other things, a notice to admit is not to substitute for other discovery vehicles, such as depositions and interrogatories, and where the information sought by defendant concerning plaintiff’s use of social media was available through other means.
The O’Neill court also struck defendant’s supplemental notice of discovery and inspection, which sought production of all electronic and written data from plaintiff’s computer, cell phone, personal digital assistant, and postings to his social media sites, as well as authorizations to access this information. Reiterating the well-settled principles that “the test is one of usefulness and reason” and that “a party does not have the right to uncontrolled and unfettered disclosure,” the court held that defendant had failed to establish “any foundation” to warrant access to plaintiff’s electronic writings or social media accounts. The court noted that defendant had not deposed plaintiff on such issues, which “might” have provided the necessary foundation.
Use of Social Media
Litigants also look to publicly available portions of an opposing party’s social media postings in an effort to refute or discredit sworn testimony. In Progressive Ins.Co. v. Herschberg,12 petitioner insurance company sought to stay an uninsured motorist arbitration by asserting that the photos and information posted on respondent’s Facebook page materially varied from his sworn testimony, thereby constituting a breach of his insurance policy. The insurance company argued that respondent’s testimony regarding his damages were belied by photographs and statements posted on publicly available portions of respondent’s Facebook account, and which purportedly evidenced respondent engaging in activities that he testified he was unable to perform. Respondent contended that “his Facebook pages contained puffery and fantasy, not actual statements.”
The court held that to justify denial of insurance coverage, any misrepresented facts had to be “material” or that respondent engaged in “fraudulent conduct.” The court noted that respondent admitting that some of his sworn testimony had been incorrect did not satisfy the “heavy burden of proof” to demonstrate that the insurance policy had been breached.
Accordingly, counsel should be aware that production of metadata is the “new normal,” and if a party’s “document” production fails to include appropriate metadata, a costly reproduction may well likely be required. In addition, parties’ social media postings are “in play” and, upon the appropriate showing, courts will not hesitate to order the production
1. Index No. 113109/2009, NYLJ 1202548297718, at *1 (Sup. Ct. N.Y. Co. Mar. 20, 2012).
2. See Dartnell Enter., Inc. v. Hewlett Packard Co., 33 Misc. 3d 1202(A), 2011 WL 4486937 (Sup. Ct. Monroe Co. Sept. 13, 2011) (defendant objected to producing the requested documents in their native electronic format, including metadata, and the court noted that “[e]lectronic documents in their native form may be discoverable even when a hard copy has been provided.”).
3. 939 N.Y.S.2d 395, 2012 N.Y. Slip Op. 01515 (Feb. 28, 2012).
4. Facebook e-discovery also has been resolved through a stipulated order. In Alevy v. Facebook, Index 11471/11 (Sup. Ct. N.Y. Co. Jan. 11, 2012), by stipulation, Facebook agreed to provide “reasonably available basic subscriber information it may have associated with the creator of the Facebook Group ‘I Hate Steven Alevy.’” Facebook agreed to provide notice to the affected user, who was giventwenty days to file an objection or motion in opposition to the petition or for a protective order. Absent any such filing, under the stipulated order, Facebook was to conduct its “standard query for basic subscriber information, including for records of logins and logouts. This basic information, to the extent it was provided by the user to Facebook, may include the current Facebook account status; any available payment information; e-mail address; available IP address(es); registration date; user-provided names; and any user-designated vanity URL.”
5. 35 Misc.3d 1209(A), 2012 WL 1231021 (Sup. Ct. Richmond Co. Apr. 9, 2012).
6. Index No. 13713 (Sup. Ct. Nassau Co. Jan. 24, 2012).
7. Index No. 104403/09 (Sup. Ct. N.Y. Co. Jan. 18, 2012).
8. Id. at 2 (citing Patterson v. Turner Construction Co., 88 A.D.3d 617, 931 N.Y.S.2d 311 (1st Dep’t 2011)).
9. Index No. 101541/2010 (Sup. Ct. Richmond Co. Nov. 30, 2011). See also Ackerman v. LoriRealty, Index No. 107982/2009 (Sup. Ct. N.Y. Co. Nov. 21, 2011) (disclosure of Facebook page denied as the records were “palpably irrelevant and [defendant had] not made any contrary argument”); Rypkema v. NY & Atlantic Railway Co., Index No. 26871/2009 (Sup. Ct. Queens Co. Oct. 11, 2011) (claim that plaintiff testified to having gone on post-accident vacations was insufficient to permit unlimited access to plaintiff’s Facebook account, including deleted pages, and that it would lead to evidence that was material and necessary to defendant’s defense).
10. Kramer v. Elrac, Inc., Index No. 105273/2009 (Sup. Ct. N.Y. Co. Jan. 18, 2012) (defendant did not inquire at plaintiff’s deposition regarding her use of social media and did not establish a factual predicate with respect to the relevancy of the evidence sought, and the contention that plaintiff “must have” further electronic communications regarding her damages,in addition to what was produced, was insufficient to warrant discovery of plaintiff’s Facebook and other social media accounts). See Sterling v.May, Index No. 106943/2009 (Sup. Ct. N.Y. Co. Nov. 22, 2011) (plaintiff’s testimony that she had a Facebook account, in and of itself, was insufficient to establish a factual predicate necessary for disclosure of such records).
11. Index No. 20459/2008 (Sup. Ct. Suffolk Co. Nov. 16, 2011).
12. Index No. 0014/2010 (Sup. Ct. Nassau Co. Jan. 12, 2012).