The first quarter of 2013 was among the busiest yet for developments in the use of social media in litigation.
First, courts have continued to weigh in on the extent to which a party can obtain discovery of an opposing party’s social media information.
In Gatto v. United Air Lines, Inc., a federal magistrate judge sanctioned a personal injury plaintiff for spoliation because the plaintiff deleted his Facebook account while discovery was ongoing. No. 10-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013); see also Mary Pat Gallagher, Party’s Deletion of Facebook Page Found to be Spoliation of Evidence, N.J. L.J., Mar. 27, 2013. The plaintiff had alleged that the accident at issue left him permanently disabled and unable to work. The defendants sought discovery related to the plaintiff’s allegations, including information posted on his social media accounts. After the plaintiff refused to permit the Defendants to access his Facebook account, the court ordered him to do so. The plaintiff then deactivated his account, and Facebook subsequently deleted the account information. Because the defendants contended that the Facebook evidence would have been relevant to the plaintiff’s credibility and to dispute his damage claims, they moved for spoliation sanctions.
The court held that the plaintiff had a duty to preserve his account at the time he deactivated it and that he intentionally deactivated his account. The court therefore sanctioned him by imposing an adverse-inference jury instruction. The court also found that the deletion prejudiced the defendants, but the plaintiff’s actions did not warrant an award of attorneys’ fees and costs, because the adverse-inference jury instruction was a sufficient penalty.
This holding is a useful reminder that litigants and their attorneys should consider pursuing discovery of their opponents’ social media information, and that there may be a duty to preserve their own social media evidence, including in the commercial litigation context. Many companies now have blog posts, Facebook pages, and Twitter accounts. Moreover, company employees are increasingly being allowed to use their personal devices to do their work, thus creating the possibility that businesses may have to preserve, collect, and produce information from employees’ social media accounts and mobile devices. See Allison Grande, Employee Facebook Info Making Its Way Into Court, GCs Say, Law360 (Feb. 26, 2013, 12:13AM), http://www.law360.com/articles/418464/employee-facebook-info-making-its-way-into-court-gcs-say. Attorneys representing businesses need to be aware that a company’s social media posts could be discoverable and give rise to a duty to preserve. Attorneys should work with their company’s technology department to ensure that the company is taking all necessary steps to preserve relevant social media evidence.
Second, some courts and governmental agencies have started permitting parties to use social media to comply with certain obligations under the Federal Rules of Civil Procedure and under federal securities laws. See Jenna Greene, Corporate Disclosure Enters the Age of Social Media, with SEC’s Blessing, Nat’l L.J., Apr. 2, 2013 (“Greene”); Ama Sarfo, FTC Can Serve Court Docs Via Facebook, Judge Says, Law360 (Mar. 13, 2013, 7:25 PM), http://www.law360.com/articles/423602/ftc-can-serve-court-docs-via-facebook-judge-says.
In the securities context, the SEC clarified in a report released on April 2, 2013, that companies can use social media to disclose important business information, as long as they make sure in advance that investors know where to find that information. See Greene, supra. “Most social media are perfectly suitable methods for communicating with investors, but not if the access is restricted or if investors don’t know that’s where they need to turn to get the latest news.” See id. (quoting Acting Director of SEC’s enforcement division).
In the federal court litigation context, a federal judge in New York ruled that a party can serve legal documents on an opposing party using Facebook, in combination with other methods. FTC v. PCCare247 Inc., No. 12-7189(PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013). A previous case in the same district had held that service via Facebook was not allowed because the plaintiff there had not set forth sufficient facts to “give the Court a degree of certainty” that the defendant operated the Facebook accounts in question. Fortunato v. Chase Bank USA, No. 11-6608(JFK), 2012 WL 2086950, at *2 (S.D.N.Y. June 7, 2012). In this latest case, the FTC provided enough information to give the court the certainty necessary to establish that the defendants operate the Facebook accounts and actively use them in their business. The court explained that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” FTC, 2013 WL 841037, at *6. Additionally, because the defendants were located in India and traditional means of service had been ineffective, service by Facebook was an appropriate way “to backstop the service upon each defendant at his, or its, known email address.” Id. at *5. The court clarified, however, that using Facebook as the sole means of service may not satisfy due process requirements.
The ability to serve documents through Facebook may be helpful for attorneys who face an opposing party that is difficult to reach through more traditional means. But, although this case represents an endorsement of using social media as a supplemental means for effectuating service of process, there is still an open question as to whether a party can use social media as the only method of service.