This document summarizes key issues around confronting social media at depositions and discovery. It discusses how lawyers should advise clients on social media use related to legal cases. Lawyers need to discuss privacy risks with clients and get agreements about preserving and not deleting social media information, as it could be considered evidence. The document also reviews cases where courts have ordered parties to turn over social media login information or limited the scope of access depending on the relevance of the information requested.

1. Confronting Social Media at Depositions and Discovery
Mark Zamora

3. Where do you start?
(Hint: It’s not with your client)
Rule 1.1 Model Rules: ABA voted to amend the comment to Model
Rule 1.1, governing lawyer competence. In addition to keeping abreast
of changes in the law and its practice, a lawyer should keep abreast of
the benefits and risks associated with relevant technology.

4. Does your Contract/Letter Cover it?
We strongly encourage you not to participate in social media
(Facebook, Pinterest, Tumblr, Instagram, and the like) while
your case is ongoing.
Information found on social media websites is not private, can
be discovered by the at fault party who hurt you, and if
used as evidence may be potentially damaging to your
interests.
Understand that information shared with others in writing by
email, text message or even posted anywhere online could
result in a waiver of the€attorney client privilege were that
information to relate in any way to the legal matter that we
are handling for you.
In addition, you should not delete or remove information from
any social media website as that could be considered
destruction of evidence.

5. The Client Meeting
Your checklist:
What is on your client’s mobile phone?Tablet?

11. Discovery and Social Media – Works both ways

13. What is your plan?
Two tracks: Plaintiff and Defendant
Defendant: LOR :
1)Preservation Letter
2)Request for Copies
3)Request to Mirror Hard Drives
Plan for the Battle in front of Judge
Tailor your requests:
*Don't ask for the company's 265,000 page website or 5000
employee intranet
*Do ask for information you believe you will need logically –
prior iterations of the company mission statement; white
papers previously posted

15. Attorney Misconduct
1. 2012: Cope v. Prince. Def firm an insurer hired investigator to
access P’s “private” Facebook page.
2. 2012- NJ Attorney Ethics: Charges against two lawyers
claimed to have directed a paralegal to friend a party in
litigation. Claimed violation of contact with a represented
person. NEW 209:10 Jersey LJ (Aug. 30, 2012).
3. Ohio: Prosecutor fired, Facebook chats violated Ohio’s
requirement for truthfulness in the course of representation
because lawyer conducted the chats using a fake profile.

16. Test -Relevancy
Whether or not evidence might be admissible, or
reasonably calculated to lead to any evidence that
might be found material, or relevant in
determination of issues involved in proceeding.
Resisting party must show that the information sought
is of “such marginal relevance that the potential
harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.

17. Defendant's Most Common Discovery
a. Name and uniform resource locator (URL) address of the site;
b. The specific URL address of your account profile on the site;
c. Your account name and real names or pseudonyms you have used to identify yourself
on the site;
d. Your user ID or logon and password used to access your account on the site;
e. The dates that you used the site;
*****OR****
Any profiles, postings, or messages (including status updates, wall comments,
causes joined, groups joined, activity streams, blog entries) from socialnetworking sites from October 2009 (the approximate date Plaintiff claims she
first was discriminated against by Home Depot), through the present, that
reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as
well as communications by or from Plaintiff that reveal, refer, or relate to
events that could reasonably be expected to produce a significant emotion,
feeling, or mental state.

18. In Litigation
Any expectation of complete privacy? You know the
Answer
What must be shared? This is the frontline of the battle
Passwords: Must be turned over ? Yes say these cases
Gallion v. Gallion 2011 Conn. Super. Ct. Sept 30, 2011 (Divorce)
Gallagher v. Urbanovich, Pa. Ct. Common Pleas (PI)
Defendant assailant in a civil case ordered to turn over login and password
Mazzarella adv. Mt. Airy Casino Resort: 2009 PA State Court: Premises liability
case. Plaintiff ordered to turn over password and lo in info.

19. Gatto v. United Airlines and Allied Aviation Services., et al., No. 10-CV1090 (D.N.J. March 25, 2013)
Lesson of Gatto: Don't delete or modify if at all possible.
U.S. Magistrate Judge Steven Mannion ruled that the deletion of data in
Gatto’s Facebook account constituted “spoliation of evidence,” defined as
the negligent or intentional destruction, alteration, or withholding of
evidence relevant to a legal proceeding. This resulted in an adverse
inference against Gatto – the inference that when a party destroys
evidence relevant to a legal case, they did so because that evidence was
unfavorable to them.

20. Limiting Access- Cases
Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 WL 179320, at *2 (E.D.
Mich. Jan. 18, 2012) (denying access to the plaintiff’s entire Facebook
account because the defendant had failed to show that all information was
relevant);
Mailhoit v. Home Depot CA, No. CV 11-03892 DOC (SSx), 2012 U.S. Dist.
LEXIS 131095 (C.D. Cal. Sept. 7, 2012)
Judge Segal reviewed a comprehensive request for social media discovery.
The Court concluded that the requests failed to comply with the Federal
Rules of Civil Procedure. Segal specifically noted that “several courts
have found that even though certain [social media] content may be
available for public view, the Federal 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’ but instead require ‘a
threshold showing that the requested information is reasonably calculated
to lead to the discovery of admissible evidence.’”

22. Limiting Access
Chauvin v. State Farm Mutual:2011 U.S. Dist. LEXIS 121600 (Oct. 20, 2011)
Defendant failed to meet the initial threshold of showing that the requested information was
reasonably calculated to lead to the discovery of admissible evidence as the public portions of
the plaintiff’s Facebook account contained no evidence that she was engaging in activities
inconsistent with her injury claim.
Caraballo v. City of New York,
http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_30605.pdf
Defendant sought “current and historical Facebook and Twitter pages and accounts, including
all deleted pages and related information” In the opinion of this Court, digital “fishing
expeditions” are no less objectionable than their analog antecedents
Richards v. Hertz Corp.
http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34155.pdf
Due to the likely presence in McCarthy's Facebook profile of material of a private nature that is
not relevant to this action, the Court should conduct an in camera inspection of all status
reports, emails, photographs, and videos posted on McCarthy's Facebook profile.