Social media websites, such as Facebook, Instagram, and Snapchat, offer significant information which may provide valuable impeachment evidence in lawsuits filed by personal injury plaintiffs. This information includes references to a plaintiff’s physical condition and injuries both prior and subsequent to a subject accident, daily activities, and the subject accident itself. However, information from the most widely used social media platform, Facebook, can be difficult to obtain. Facebook data cannot be subpoenaed in a civil proceeding. Facebook FAQs include the following:
Account Contents
Federal law does not allow private parties to obtain account contents (ex: messages, Timeline posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et seq. Parties to litigation may satisfy party and non-party discovery requirements relating to their Facebook accounts by producing and authenticating the contents of their accounts and by using Facebook’s “Download Your Information” tool, which is accessible through the Settings drop down menu.
As referenced above, relevant portions of the Stored Communications Act, 18 U.S.C. § 2702, provide that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service…”
However, there are steps a party can take to obtain information from a plaintiff’s Facebook page. The proper procedure involves either (1) printing the plaintiff’s public Facebook page and have the plaintiff authenticate it in deposition/at trial, and use as impeachment; AND/OR (2) sending a Request For Production of Documents to the plaintiff and asking plaintiff to download his or her Facebook page. A sample Request for Production of Documents reads as follows:
REQUEST FOR PRODUCTION OF DOCUMENTS:
A full and complete copy of [Plaintiff]’s Facebook account information extended archive from January 1, 2009 to the present, including, without limitation, any IP address Facebook has stored; a list of the logins Facebook has stored; the IP address from which she logged out of her Facebook account; her profile (timeline) information (e.g. her contact information, interests, groups, etc.); her wall posts and content that she and her friends have posted to her profile; photos and videos that she had uploaded to her Facebook account; her friend list; notes she had created; events to which she had RSVP’d; her sent and received messages; and any comments that she and her friends have made on her wall (timeline) posts, photos, and other profile content.
To download a copy of your Facebook data:
1. Click the dropdown menu at the top right of any Facebook page and select Settings
2. Click Download a copy of your Facebook data below your General Account Settings
3. Click Start My Archive
If a party chooses to send formal discovery in the form of a Request for Production of Documents, and the plaintiff refuses to respond to the Request for Production of Documents, the party may file a Motion to Compel. In In the Matter of White Tail Oilfield Services, LLC, 2012 WL 4857777 (Oct. 11, 2012), the U.S. District Court for the Eastern District of Louisiana held that the Facebook information sought was relevant and discoverable, and that its production may be compelled.
If a plaintiff continues to refuse, or if plaintiff has “scrubbed” the Facebook page clean of evidence that was once present, the party may seek an adverse presumption due to the plaintiff’s spoliation of evidence. While there is no Louisiana law specific to Facebook, it is arguable that Facebook information may be treated the same as other electronic evidence. Because a plaintiff has a duty to preserve evidence, without the imposition of a statutory duty, an adverse presumption may arise under the theory of spoliation of evidence. Robertson v. Frank’s Super Value Foods, Inc., 2008-592 (La. App. 5 Cir. 1/13/09); 7 So.3d 669. Spoliation of evidence is defined as the intentional destruction of evidence for the purpose of depriving opposing parties of its use. McCleary v. Terrebonne Parish Consolidated Govt., 2009-2208, p.2 (La. App. 1 Cir. 9/30/10) (unpublished), writ denied, 2010-2807 (La. 2011); 56 So.3d 1003. An adverse presumption allows for a jury instruction to be given that the destroyed evidence is presumed to have contained information detrimental to the party who destroyed the evidence, unless such destruction is adequately explained. Robertson, 2008-592; 7 So.3d at 673.
Recently, the Louisiana Supreme Court issued a ruling reigning in the remedies available against a party that inadvertently loses or destroys evidence. In Reynolds v. Bordelon, 2014–C–2362, issued on June 30, 2015, the Court held that Louisiana does not recognize the tort of negligent spoliation of evidence. However, in Reynolds, the Court acknowledged that there are several remedies other than compensatory damages available to address loss of evidence, including discovery sanctions, breach of contract actions, and potentially even criminal sanctions. Therefore, even though the Court rejected the tort of negligent spoliation, it did not reject the concept that a plaintiff may be subject to sanctions (including an adverse presumption) for destroying evidence. Furthermore, a plaintiff purposely destroying relevant data from the Facebook account so that it cannot be discovered by the defendant is arguably not negligence, but an intentional act. The Reynolds court did not address intentional spoliation of evidence, just negligent spoliation. The recent ruling in Reynolds would not prevent a court from taking action against a plaintiff that destroyed relevant evidence from his or her Facebook account.
With respect to jurisdictions other than Louisiana, both federal and state courts in have ordered the production of social media data through discovery. See Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759, at 2 (M.D. Fla., Feb.21, 2012), and Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650, 654 (N.Y. Sup. Ct. 2010)