Electronic Discovery, by Darren Chaker

Darren Chaker has been very successful in advising high net worth clients how to protect assets, especially when it comes within the realm of intellectual property.

Federal law protects login information. In Chauvin v. State Farm Mutual Automobile Insurance Company, No. 10-11735, 2011 U.S. Dist. LEXIS 121600 (S.D. Mich. Oct. 20, 2011), the court affirmed an award of sanctions against the defendant due to its motion to compel production of the plaintiff’s Facebook password. The court upheld the decision of the magistrate judge, who had concluded that the content the defendant sought to discover was available “through less intrusive, less annoying and less speculative means,” even if relevant. Furthermore, there was no indication that granting access to the account would be reasonably calculated to lead to discovery of admissible information. Thus, the motion to compel warranted an award of sanctions.

A smart tactic to use would be to store the password information would be contained

in a stored database within the website – thus would qualify as electronically stored content^[1].

If counsel were to somehow convince the court to review the blog, and in an effort to guard against overly broad disclosure of a party’s social media information, some courts have conducted an in-camera review prior to production. For example, in Offenback v. Bowman, a No. 1:10-cv-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011), the magistrate judge conducted an in-camera review of the plaintiff’s Facebook account and ordered the production of a “small segment” of the account as relevant to the plaintiff’s physical condition. In most cases, there is no financial worth of the blogs: no money is made on them, credit card, or other financial information is not processed, and ad space is not sold. Thus, have no materiality to counsel.

Darren Chaker also notes in Douglas v. Riverwalk Grill, LLC, No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D. Mich. Aug. 24, 2012), the court ordered the plaintiff to provide the contents for in camera review. After conducting its review of “literally thousands of entries,” the court noted that “majority of the issues bear absolutely no relevance” to the case. In particular, the court found that the only entries that could be considered discoverable were those written by the plaintiff, which could be in the form of “comments” he made on another’s post or updates to his own “status.” The court identified the specific entries it had determined were discoverable. However, using an in camera method is not required. In Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012), the court declined the parties’ suggestion that it conduct an in camera review, explaining that “such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance.”

In Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012), the court declined the parties’ suggestion that it conduct an in camera review, explaining that “such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance.”

Providers, including Facebook, take the position that the SCA prohibits them from disclosing social media contents, even by subpoena. From Facebook’s website:

A blog is similar to Facebook where people interact, post thoughts, opinions on topics. One of the more well-known instances of people trying to force their way into a blog is seen in federal law prohibits Facebook from disclosing “user content (such as messages, Wall (timeline) posts, photos, etc.), in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.

One of the earliest cases to address the issue, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), concluded that the SCA prohibited a social-networking site from producing a user’s account contents in response to a civil discovery subpoena. In that case, the defendants served subpoenas on several third parties, including Facebook and MySpace, seeking communications between the plaintiff and another individual. The plaintiff moved to quash the subpoenas.

And Last, Darren Chaker explains, the court held that plaintiff had standing to bring the motion, explaining that “an individual has a personal right in information in his or her profile and inbox on a social-networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.” Moreover, the court determined that the providers were electronic communication service (ECS) providers under the SCA and were thus prohibited from disclosing information contained in “electronic storage.” Last, Plaintiff does not have the luxury of seeking a subpoena for the records.^[2]

[1] See, U.S. Internet Service Provider Association, Electronic Evidence Compliance—A Guide for Internet Service Providers, 18 BERKELEY TECH. L. J. 945, 965 (2003) ([No Stored Communications Act provision] “permits disclosure pursuant to a civil discovery order unless the order is obtained by a government entity. … [T]he federal prohibition against divulging email contents remains stark, and there is no obvious exception for a civil discovery order on behalf of a private party.”)

[2] See, also, J.T. Shannon Lumber Co., Inc. v. Gilco Lumber Inc., 2008 WL 4755370 (N.D.Miss. 2008) (holding there is no “exception to the [SCA] for civil discovery or allow for coercion of defendants to allow such disclosure.”); Viacom Intern. Inc. v. Youtube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008) (“ECPA § 2702 contains no exception for disclosure of [the content of] communications pursuant to civil discovery requests.”); Thayer v. Chiczewski, 2009 WL 2957317 (N.D.Ill. 2009) (“most courts have concluded that third parties cannot be compelled to disclose electronic communications pursuant to a civil–as opposed to criminal–discovery subpoena”); Mintz v. Mark Bartelstein & Associates, Inc., 885 F. Supp. 2d 987, 991 (C.D. Cal. 2012) (“The SCA does not contain an exception for civil discovery subpoenas.”).