Peer to Peer Magazine

P E E R T O P E E R : I L T A ' S Q U A R T E R L Y M A G A Z I N E | F A L L 2 0 1 8 65 significant emotion,' is similarly vague and overbroad. Arguably, watching a football game or a movie on television is an 'event' that may produce some sort of 'significant emotion,' but it is unclear whether Plaintiff would be required to produce messages relating to such activities." In more recent years, courts have noted that social media discovery is very case- specific. For instance, in In re Cook Med., Inc., No. 1:14-ML-2570 (S.D. Ind. Sept. 15, 2017), both sides cited Mailhoit in their attempts to obtain—and defend against—social media discovery requests. The Cook court noted that, in Mailhoit, Home Depot sought "all social media posts that revealed, referred, or related to any emotion, feeling, or mental state" of the plaintiff. The Mailhoit court noted that all statements in one way or another evidence a person's mental state, but added a party is not entitled to compel a person to produce all of their statements. However, the Cook court noted that requesting party in Cook was entitled to compel a response to interrogatories asking the same questions, which were aimed—not at overall mental state—but at particular aspects of alleged injuries, e.g. the ability to travel more than two hours or participate in social engagements. Likewise, in a civil action this year, Hinostroza v. Denny's, Inc., No. 2:17-2561 (D. Nev. June 29, 2018), the court allowed social media discovery, but limited the scope. In a personal injury action, Denny's had sought all social media data from any account plaintiff Monica Hinostroza had for the five years preceding the incident. Although U.S. Magistrate Judge Nancy Koppe granted Denny's request for social media discovery, she limited the scope of discovery—both in terms of date range and in method of collection, review, and production. The court noted, "Social media discovery must allow the requesting party a sufficient sample size from which a potential pattern of content could reveal an emotional or mental state or physical capability that undermines a party's claim." Although Judge Koppe noted that courts have ruled that one year of social media discovery is reasonable, she ordered discovery of Hinostroza's social media data for a period of February 22, 2015 to the present—longer than the one year of data in the cited case law, but shorter than the five years Denny's requested. However, as noted above, Judge Koppe also controlled the method of review and production. Rather than granting Denny's request for Hinostroza to produce five years of social media data, the judge ordered Hinostroza's counsel to review all of her social media data (as opposed to Denny's counsel reviewing it) and produce responsive data for the shorter period of time, but the judge reminded counsel of the duty of candor. What are some concerns for attorneys when dealing with social media? In Hinostroza, Judge Koppe reminded counsel of the duty of candor, and attorneys must remember that they themselves may face serious repercussions if social media discovery goes awry. DH Perhaps the most well-known example is Allied Concrete Co. v. Lester, 285 Va. 295 (Va. 2013). Lester was a wrongful death action, including a claim for loss of consortium. In reviewing the Facebook account of a plaintiff, the surviving spouse, plaintiff's legal team discovered a photo of Mr. Lester donning a t-shirt reading, "I [heart] Hot Moms." For obvious reasons, Mr. Lester's counsel did not want that photo coming out in discovery, and he instructed his paralegal to tell Mr. Lester to "clean up" is Facebook page. This spoliation of evidence had serious consequences. Although Mr. Lester prevailed in this action against Allied Concrete, the court ordered sanctions of $180,000 against Mr. Lester and $542,000 against his counsel. In addition, counsel faced disciplinary proceedings with the state bar. Moral of the story: You may not have to produce all social media data your client has, but you can't have them destroy it either. Practical issues in social media collection Emerging aspects social media create new issues for counsel. For instance, what about emojis, emoticons, and geo-location data? Software applications built on the Relativity platform can search social media for emojis, and Relativity itself can provide geo-location data in processing. (Disclaimer: one of the authors of this article is employed by Relativity.) These data can provide critical information in discovery. For example, as e-discovery expert Craig Ball has noted, a smiling emoji can completely change the meaning of a statement. Likewise, a case can turn on the location of a post, which can be discovered with advanced e-discovery technolo.

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