By David M. Governo and Corey M. Dennis
In this age of social media, many companies maintain pages on Facebook®, Twitter®, and other similar websites. Company information on such websites may be discoverable under the broad rules of discovery imposed by state and federal rules of procedure. It is well-established jurisprudence that a party to a lawsuit has a duty to preserve evidence that is potentially relevant to the litigation. It is important for companies to understand that this duty extends to electronically stored information, including information on social media websites.
Courts have held that the duty to preserve arises when a party has notice that the evidence is relevant to pending or "reasonably foreseeable" litigation. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); see also Zubulake v. UBS Warburg LLC ("Zubulake IV"), 220 F.R.D. 212, 216 (S.D.N.Y. 2003); Kippenhan v. Chaulk Services, Inc., 428 Mass. 124, 127 (1998). Whether the duty to preserve is triggered is a factual inquiry. A pre-suit demand letter or even an oral threat of litigation before suit is commenced may be deemed sufficient to trigger such a duty. See UMG Recordings, Inc. v. Hummer Winblad Venture Partners (In re Napster, Inc. Copyright Litig.), 462 F. Supp. 2d 1060, 1069 (N.D. Cal. 2006); Cache La Poudre Feeds, LLC v. Land O'Lakes Farmland Feed, LLC, 244 F.R.D. 614, 622-23 (D. Colo. 2007). It has also been held that a duty to preserve electronically stored information arose when a community college became aware of allegations of sexual assault against a professor, even though the plaintiff had not yet filed her lawsuit. See Doe v. Norwalk Cmty. College, 248 F.R.D. 372, 377 (D. Conn. 2007). However, while a pre-suit demand letter that explicitly threatens impending litigation would trigger an obligation to preserve evidence, a letter implying that a negotiated resolution is preferred is likely insufficient. See Cache La Poudre Feeds, LLC v. Land O'Lakes Farmland Feed, LLC, 244 F.R.D. 614, 622-23 (D. Colo. 2007).
Once the duty to preserve evidence arises, a company must suspend any routine document retention/destruction policies it may have and issue a "litigation hold," which ensures the preservation of relevant documents and electronically stored information. See Zubulake IV, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). The failure to do so could result in sanctions based on spoliation of evidence, such as dismissal of a claim or defense, granting judgment in favor of a prejudiced party, suppression of evidence, an adverse inference (referred to as the spoliation inference), fines, or attorneys' fees and costs. See MOSAID Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D. N.J. 2004). Spoliation is defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001); see also Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 429 (S.D.N.Y. 2009).
Under the Federal Rules of Civil Procedure, sanctions may not be imposed for failing to provide electronically stored information lost as a result of "routine, good-faith operation of an electronic information system," absent exceptional circumstances. Fed. R. Civ. P. 37(e); see also Arista Records LLC, 608 F. Supp. 2d at 431 n.31. However, despite this rule, when a company is under a duty to preserve information, good faith will require a litigation hold to prevent a loss of information. See Advisory Committee Note to the 2006 Amendment to Fed. R. Civ. P. 37(f); see also Arista Records LLC, 608 F. Supp. 2d at 431-32 & n.31. Courts have concluded that while a party is not expected to "meet a standard of perfection" in its preservation of evidence, "a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence." Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 461-62 (S.D.N.Y. 2010). It is, therefore, imperative that businesses have a legal hold process in place, which should apply to social media and other electronically stored information, and that record keepers understand the process and execute it when necessary.
As a corollary, the social media information of a plaintiff may prove helpful to the defense of a case; for instance, Facebook photographs of a plaintiff in a personal injury lawsuit could demonstrate the lack of his or her impairment. Recent cases have held that such information is discoverable. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 657 (N.Y. Sup. Ct. 2010) (granting defendant's motion to compel discovery regarding plaintiff's current and historical Facebook and MySpace® pages and accounts in personal injury action); Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011) (granting motion to compel personal injury plaintiff's MySpace and Facebook usernames and passwords); McMillen v. Hummingbird Speedway, Inc., No. 113 - 2010, 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010) (holding Facebook account postings of plaintiff in personal injury action were discoverable and granting defendants' motion to compel). Thus, while the laws regarding discovery and preservation of evidence impose burdens on businesses entangled in litigation, they may also be utilized to gain a tactical advantage.
Complying with the duty to preserve evidence in the age of social media can be challenging and burdensome for companies. Nevertheless, implementing effective protocols and procedures when litigation arises is essential to preserving all relevant evidence, including that housed on social media websites, and avoiding the imposition of sanctions.
David M. Governo is the founding partner at Governo Law Firm LLC. For over three decades, Mr. Governo has defended companies in complex litigation, including toxic torts, environmental, asbestos, benzene, lead, insurance coverage, mold, and product liability claims. He is an active member of the Federation of Defense and Corporate Counsel and serves as the Chair of the Toxic and Environmental Law Section. He has been voted a New England Super Lawyer for many years. His recent pro bono activity includes serving as the Chairman of the Board for Healthy Housing Solutions, which is a subsidiary of the National Center for Healthy Housing.
Corey M. Dennis practices complex litigation and dispute resolution at Governo Law Firm LLC in Boston, Massachusetts. He has experience in the areas of business litigation, product liability, toxic tort, employment, medical malpractice, and premises liability defense. Mr. Dennis is a cum laude graduate of Suffolk University Law School, where he served as a Comment Editor of the Suffolk University Law Review, and a summa cum laude graduate of the University of Massachusetts's Honors College. He has authored numerous law journal articles covering a wide range of topics, including social media, employment law, toxic torts and civil procedure.
i A party seeking an adverse inference instruction based on the destruction of evidence generally must establish: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state of mind"; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002); Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 430 (S.D.N.Y. 2009).