This document summarizes key points about social media discovery and preservation in litigation. It discusses how social media usage is growing among older age groups. It also discusses how social media content can be relevant evidence and how spoliation rules require preservation of social media that may be relevant to contemplated or pending litigation. Case examples show how deletion of social media content has resulted in spoliation findings and sanctions. The document also addresses authenticating social media evidence and dealing with hearsay and privacy issues. It provides guidance on instructing jurors regarding social media usage during a trial.

1. Social Media Discovery: NATA 2015
Mark Zamora
mark@markzamora.com
Offices Tampa and Atlanta
Mass tort litigation: Dietary supplements and products

3. Understand Social Media
61 % of seniors 50-65 use email
20% of seniors age 50-65 visit social networks
Facebook User Base: 43% of the base – age 45 and older
Pinterest: Nearly 15% of its users are 55 and older
IT’S THE APPS

4. Understand the Subject

6. Immediacy of Social Media
Vine captures Truck wreck

7. Take an Inventory of what is Popular

8. Preservation and Spoliation
Spoliation refers to the “destruction or failure to preserve evidence that is necessary to
contemplated or pending litigation.” Silman v. Associates Bellemeade, 286 Ga. 27 (2009) .
A perfect preservation letter must, seek to halt routine business practices geared to the
destruction of potential evidence. My practice- we won’t use “any and all … “ nor do we use
“including but not limited to … .”
Case examples of spoliation: Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25,
2013) (“Gatto”) and the Virginia state case Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013)
(“Lester”).
Gatto:
Airline requested spoliation sanctions because the plaintiff destroyed Facebook material that
would have shown that he was not disabled and lived an active lifestyle as shown by the
material she previously printed out.
• The plaintiff argued that he deleted the account because other people were trying to access
his account without permission. • Plaintiff also argued that the airline assured that they would
not access the account online but through Facebook’s corporate offices. The airline denied
any such assurance.• The judge did not believe the deletion was unintentional. • Sanction: A
Jury Instruction on Spoliation.

9. Allied Concrete v. Lester 736 SE 2d 699, 285 Va. 295 – VA Sup. Ct., 2013
Defendant sought discovery of plaintiff’s social media accounts to rebut the alleged
impact of the crash on plaintiff. Plaintiff’s Facebook page contained photographs that
cast him in a negative light, which defendant’s counsel (apparently under permissible
circumstances) was able to briefly access. Among photographs was one depicting
plaintiff “holding a beer can while wearing a T-shirt emblazoned with ‘I ♥ hot
moms’”
The next morning after receiving the discovery request, plaintiff’s attorneys instructed
plaintiff: “[w]e do NOT want blow ups of other pics at trial so please, please clean up
your [F]acebook” Id.
Plaintiff deactivated his Facebook account, then reactivated it and deleted the sixteen
pictures. Subsequently he stated in a deposition that he had not deactivated the
account. Id. In further discovery proceedings to identify what evidence plaintiff had
suppressed, plaintiff’s attorney “intentionally omitted” any mention of the email
instructing plaintiff to “clean up” his Facebook account. Id. at 703.
The court awarded defendant $722,000 in sanctions , with $542,000 due from
plaintiff’s counsel and $180,000 due from plaintiff.

10. Facebook: Plaintiff’s Privacy Interest
“Minimal” & Production Ordered - 2149 Pix Disclosed
Nucci v. Target Corp., FL 4th
DCA 1/7/2015
“this case as one that “stands at the intersection of a litigant’s privacy interests in
social media postings and the broad discovery allowed in [a state] a civil case.”
Denying the Plaintiff’s petition for certiorari, the Court found that the photographs
were, “reasonably calculated to lead to admissible evidence and the Plaintiff’s privacy
interest in them was minimal, if any.”
“Generally the photographs posted on a social networking site are neither
privileged nor protected by any right of privacy, regardless of any privacy
settings that the user may have established”

11. Nucci
The order also compelled production of the following items:
1. For each social networking account listed in response to the interrogatories,
please provide copies or screenshots of all hotographs associated with that
account during the two (2) years prior to the date of loss.
2. For each social networking account listed in the interrogatories, provide
copies or screenshots of all photographs associated with that account from the
date of loss to present.
postings on plaintiff’s online Facebook account, if relevant, are not shielded
from discovery merely because plaintiff used the service’s privacy settings to
restrict access.

12. Authenticating Evidence
What about authentication? “[A] piece of paper or electronically stored information,
without any indication of its creator, source, or custodian may not be authenticated under
Federal Rule of Evidence 901.” United States v. O’Keefe, 537 F. Supp. 2d 14, 20 (D.D.C.
2008).
Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000): The requirement
of authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent
claims." Rule 901(a), SCRE.
The authentication of electronically stored information involves the following questions, at
a minimum:
How was the evidence collected?
Where was the evidence collected?What types of evidence were collected? Who handled
the evidence before it was collected?
When was the evidence collected?
Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence § 8.11(C), at 8–63 (3d
ed.).

13. Hearsay:
To use the hearsay rules to exclude, or the exceptions to admit, social media, lawyers need only apply
the rules and exceptions in the same way they apply them to other evidence
Miles v. Raycom Media, Inc., 2010 U.S. Dist. LEXIS 122712, at *7–9, n.1 (S.D. Miss. Nov. 18, 2010),
which held that a Facebook page containing unsworn statements made by third parties that were offered
to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of
Evidence 801.
Jackson v. Speed, 326 S.C. 289, 305, 486 S.E.2d 750, 758 (1997) -"The improper admission
of hearsay is reversible error only when the admission causes prejudice

14. An Appellate Court ruled a Facebook post submitted by the prosecution in a recent criminal case to be inadmissible
as evidence. In Commonwealth v. Banas, 2014 WL 1096140 (March 21, 2014), the State introduced the Facebook
post in the form of a printout of a screenshot without any additional circumstantial evidence to establish
authenticity. The court explained that more information beyond the screenshot itself was required to establish a
proper foundation for the Facebook post.
The testimony of the examiner who preserved the social media or other Internet evidence “in combination with
circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the
website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213
F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D.
534, 546 (D.Md. May 4, 2007)
Facebook Postings

15. Model Jury Instruction
You, as jurors, must decide this case based solely on the evidence presented here
within the four walls of this courtroom. This means that during the trial you must not
conduct any independent research about this case, the matters in the case, and the
individuals or corporations involved in the case. In other words, you should not consult
dictionaries or reference materials, search the internet, websites, blogs, or use any other
electronic tools to obtain information about this case or to help you decide the case.
Please do not try to find out information from any source outside the confines of this
courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your
fellow jurors. After you retire to deliberate, you may begin discussing the case with your
fellow jurors, but you cannot discuss the case with anyone else until you have returned a
verdict and the case is at an end.
I know that many of you use cell phones, Blackberries, the internet and other tools
of technology. You also must not talk to anyone at any time about this case or use these
tools to communicate electronically with anyone about the case. This includes your
family and friends. You may not communicate with anyone about the case on your cell
phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any
blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You
may not use any similar technology of social media, even if I have not specifically
mentioned it here. I expect you will inform me as soon as you become aware of another
juror’s violation of these instructions.
http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf

16. Trial Starts – In the Clear, Right? Wrong
Ask Judge to remind jury at the end of each trial day about no use of social media.
Missouri: Wrongful death trial, juror talked about the case daily on her Facebook
page:
“Sworn to secrecy as to details of this case. Most importantly . . . the 3:00 p.m.
Cocktail hour is not observed!”
Friend: “If he’s cute and has a nice butt, he’s innocent!”
• Juror: “Drunk and having a great food at our fav neighborhood hangout”
Sylvia Hsieh, Juror’s Facebook Posts May Overturn Wrongful Death Verdict,
LAWYERS.COM (Feb. 14, 2013), http://blogs.lawyers.com/2013/02/jurors-
facebookposts-overturn-verdict. The offending juror was jailed for two months for
contempt.

17. Cases on Juror and Social Media
State v. Smith, 2013 WL 4804845 (Tenn. Sept. 10. 2013) the Tennessee Supreme
Court considered how a trial court should react when it learns “during a jury’s
deliberations that a juror exchanged Facebook messages” with a witness.
The trial judge should “immediately” conduct a “hearing in open court to obtain all the
relevant facts surrounding the extra-judicial communication,” including its impact on
the juror’s “ability to serve as a juror” and whether any improper information was
shared with other jurors.
Are you a friend? You MUST ASK. WGM v. State, WL4710406 (Ala. Crim. App.
2013) – claim of juror misconduct was rejected because venire was never asked about
social networking relationships.
Facebook friendships “do not necessarily carry the same weight as true friendships or
relationships in the community, which are generally the concern during voir
dire … . Sluss v. Commonwealth 381 S.W.3rd
215 (Ky. 2012)

18. Explain Why Instruction must be Repeated
Some jurors may not even realize that it is wrong to communicate on social media
about the case.
It is important to tell the jury why the restrictions exist. It is not because of some
technical legal formality, but is necessary to ensure the fundamental fairness
of the trial in a variety of ways. By explaining to the jury the important reasons that
underlie the rule, jurors are more likely to be invested in preserving the integrity of the
process and less likely to write off the rule as unimportant or unnecessary.