SOCIAL MEDIA IN DISCOVERY. April 20, Facebook and other repositories of social media content present a unique challenge for

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1 Jane Ann Landrum Evans & Dixon LLC 1100 Main Street, Suite 2000 Kansas City, Missouri Direct Line: SOCIAL MEDIA IN DISCOVERY April 20, 2016 OVERVIEW Facebook and other repositories of social media content present a unique challenge for courts. The amount of information potentially subject to production is huge, data is retained for a long period of time, and the number of people with whom the Facebook account holder communicates is potentially limitless. Nonetheless, a court may compel production of a party's Facebook information if the party seeking disclosure makes a threshold relevance showing. Courts are thus tasked with the challenge of applying traditional discovery rules and standards to the new amorphous context that is social media. Maochun Ye v. Cliff Veissman, Inc., 2016 WL (Slip Opinion March 7, 2016); Equal Emp't Opportunity Comm'n v. Simply Storage Mgmt., LLC, 270 F.R.D 430, (S.D. Ind. 2010); see also Higgins v. Koch Development Corp., 2013 WL , at *2 (S.D. Ind. July 5, 2013); Thompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012). Appier v. Mead Johnson & Co., LLC, 2015 WL , at *2 (S.D. Ind. Sept. 24, 2015) MISSOURI DISCOVERY RULES GENERALLY Provisions for discovery were neither designed nor intended for untrammeled use of a factual dragnet or fishing expedition. Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. E.D. 2010). Discovery lacking appropriate geographic, temporal, or subject matter limitation is overbroad. Id. at 523. It is the affirmative duty and

2 obligation of the trial court to prevent the subversion of pre-trial discovery into a war of paper for any reason or purpose. Id. In State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602 (Mo. 2002), the Supreme Court held that the discovery process was not designed to be a scorched earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless overzealous representation of Plaintiffs and Defendants. Id. at 606. Further, it has long been held that the interrogated party should be compelled to answer only as to matters of fact within his knowledge and should not be required to express opinions or to engage in research and compilation of data and information not readily known to him. See State ex rel. Gamble Constr. Co. v. Carroll, 408 S.W.2d 34 (Mo. 1966). MISSOURI SAFETY STATUTE Although an increasing number of states are placing restrictions on cell phone usage, Missouri has no law regarding the use of cell phones while driving. However, R.S. Mo , effective August 28, 2013 provides that: Text messaging while operating a motor vehicle prohibited--exceptions--commercial motor vehicle, use of hand-held mobile telephone, text messaging prohibited, exceptions-- definitions--violation, penalty Currentness 1. Except as otherwise provided in this section, no person twenty-one years of age or younger operating a moving motor vehicle upon the highways of this state shall, by means of a hand-held electronic wireless communications device, send, read, or write a text message or electronic message. 2. Except as otherwise provided in this section, no person shall operate a commercial motor vehicle while using a hand-held mobile telephone.

3 3. Except as otherwise provided in this section, no person shall operate a commercial motor vehicle while using a wireless communications device to send, read, or write a text message or electronic message. 4. The provisions of subsection 1 through subsection 3 of this section shall not apply to a person operating: (1) An authorized emergency vehicle; or (2) A moving motor vehicle while using a hand-held electronic wireless communications device to: (a) Report illegal activity; (b) Summon medical or other emergency help; c) Prevent injury to a person or property; or (d) Relay information between a transit or for-hire operator and that operator's dispatcher, in which the device is permanently affixed to the vehicle. 5. Nothing in this section shall be construed or interpreted as prohibiting a person from making or taking part in a telephone call, by means of a hand-held electronic wireless communications device, while operating a noncommercial motor vehicle upon the highways of this state. 6. As used in this section, electronic message means a self-contained piece of digital communication that is designed or intended to be transmitted between hand-held electronic wireless communication devices. Electronic message includes, but is not limited to, electronic mail, a text message, an instant message, or a command or request to access an internet site. 7. As used in this section, hand-held electronic wireless communications device includes any hand-held cellular phone, palm pilot, blackberry, or other mobile electronic device used to communicate verbally or by text or electronic messaging, but shall not apply to any device that is permanently embedded into the architecture and design of the motor vehicle. 8. As used in this section, making or taking part in a telephone call means listening to or engaging in verbal communication through a hand-held electronic wireless communication device. 9. As used in this section, send, read, or write a text message or electronic message means using a hand-held electronic wireless telecommunications device to manually communicate with any person by using an electronic message. Sending, reading, or writing a text message or electronic message does not include reading, selecting, or entering a phone number or name into a hand-held electronic wireless communications device for the purpose of making a telephone call.

4 10. A violation of this section shall be deemed an infraction and shall be deemed a moving violation for purposes of point assessment under section The state preempts the field of regulating the use of hand-held electronic wireless communications devices in motor vehicles, and the provisions of this section shall supercede any local laws, ordinances, orders, rules, or regulations enacted by a county, municipality, or other political subdivision to regulate the use of hand-held electronic wireless communication devices by the operator of a motor vehicle. 12. The provisions of this section shall not apply to: (1) The operator of a vehicle that is lawfully parked or stopped; (2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance; (3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system; (4) The use of voice-operated technology; (5) The use of two-way radio transmitters or receivers by a licensee of the Federal Communications Commission in the Amateur Radio Service. This statute has not yet been interpreted by a Missouri Court. The only case in Missouri in which a party was using her cell phone to text is Saunders v. Baska, 397 S.W.3d 44 (Mo. App. W.D. 2013). The Saunders Court quoted 60A CJS Motor Vehicle 662, which states: The duty to keep a proper lookout may be violated when the driver becomes distracted while talking on a cellular telephone and was not looking down the traveling lane of a parking lot just before the driver collided with the plaintiff motorist's automobile. 44 A reasonable inference of negligence may be presented by evidence that the driver was using a cell phone at the time of a rear-end accident and was distracted as a result. Id. at 50. In Saunders, the Court found from Defendant s testimony that the accident occurred at 7:05a.m. and she sent a text a 7:04 a.m. and received a text at 7:06 a.m., a jury could reasonably infer that, as [Defendant] reached the intersection, she was distracted and looked to her left so hastily that she failed to see [Plaintiff s] vehicle.

5 MISSOURI JURY CONDUCT Court instructed jury not to post on social media sites about this trial or your thoughts or opinions about any issue in this case. [MAI 2.01] Juror who wrote Reporting for jury duty at Greene County Judicial Facility and that he was Sworn to secrecy as the details of this case. Most importantly there is no beverage service and the 3pm cocktail hour is not observed. During the trial, jury wrote about what he ate for lunch and dinner, start times, what day of trial they were on and at the conclusion, he posted, Civic duty fulfilled and justice served. Now, where s my cocktail? Court found that juror s remarks were not jury misconduct in that they did not violate the court s instruction not to post on Facebook about this case. The juror did not discuss the details of the case and did not even say whether the case was a civil case or criminal case. He limited his comments to the basic fact that he was serving on a jury; none of the responses gave him evidentiary facts pertinent to the case being tried. The trial court did not abuse its discretion when it denied the motion for new trial based on the juror s Facebook posts. J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49 (Mo. App. S.D. 2014). FED RULE 34 Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes Currentness (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data

6 compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form--or if no form was specified in the request--the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. FORMAT Use of TIFF images is a reasonably usable form for the production of ESI under Rule 34(b)(2)(E) when the parties have never discussed a particular format for production of electronic documents. In re Jemsek Clinic, P.A WL (US Bankruptcy Court August 2, 2013) citing Wyeth v. Impax Labs., Inc., No. Civ. A JJF, 2006 WL , at *1 2 (D.Del. Oct.26, 2006)

7 PRIVACY ISSUES When Plaintiff puts his mental disability and emotional state at issue, Defendant is entitled to information from his social media websites that bear on these topics, including other stressors in Plaintiff s life that could account for the emotional distress she is now claiming was due to her treatment at and termination of employment from Defendant. Holter v. Wells Fargo and Company, 281 F.R.D. 340 (D. Minn. 2011). In Holter, Court ordered Plaintiff s counsel to review all of Plaintiff s social media content for the period when she alleged her problems with her employer began to the present, and produce any content or communications that reveals or refers to: Id. at Any emotion, feeling or mental state, including but not limited to any reference of depression, anxiety or mental disability; 2. To any events that could reasonably be expected to produce a significant emotion, feeling, or mental state; 3. Defendant, Plaintiff s employment at Defendant or termination of employment from Defendant; and 4. Plaintiff s search for employment following her termination of employment from Defendant. The Court held that Plaintiff would not be required to provide Defendant with any passwords or user names to any social websites, so that Defendant can conduct its own search and review. Just as the Court would not give Defendant the ability to come into Plaintiff s home or peruse her computer to search for possible relevant information, the Court will not allow Defendant to review social media content to determine what it deems is relevant. The Court

8 trusts that Plaintiff s counsel, as an officer of the Court, will review social media content and communications and produce any relevant information. Id. A court can limit discovery if it determines, among other things, that the discovery is: (1) unreasonably cumulative or duplicative; (2) obtainable from another source that is more convenient, less burdensome, or less expensive; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Mailhoit v. Home Depot USA, Inc., 285 F.R.D. 566 (D.C. Cal. 2012), citing Favale v. Roman Catholic Diocese of Bridgeport, 235 FR.D. 553, 558 (D. Conn. 2006). EXPERT TESTIMONY Expert testimony is governed by Federal Rule of Evidence 702, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, or experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Where the subject matter is within the knowledge or experience of lay people, expert testimony is superfluous. Haskins ex rel. Haskins v. Helzberg, 2006 WL (February 17, 2006); citing Pelster v. Ray, 987 F.2d 514, 526 (8th Cir.1993). The test for determining the appropriateness of expert testimony is the common sense inquiry of whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.

9 The Haskins Court ruled that an expert s testimony that drivers who are using cell phones are more likely to be involved in collisions than drivers who are not using cell phones is both superfluous and irrelevant. The negligence issue in this case is simple. The question for the jury will be whether the Defendant in fact failed to keep a careful lookout and/or failed to yield the right-of-way to Mrs. Haskins, not whether cell phone use generally increases the likelihood of collisions. The jury has the ability to listen to the testimony from the witnesses and decide the negligence issue without any help from Atchley. Whether the defendant was in fact distracted by his cell phone at the time of the collision is also an issue that the jurors can decide without specialized knowledge regarding the general risks of cell phone use while driving. Because the expert s testimony was within the knowledge and experience of the average lay person and reaches conclusions within the jury's competence, the expert s testimony failed to meet the requirements of Rule 702, as set forth in Daubert, and Kumho. MOTION TO COMPEL When a party fails to produce discovery that is relevant under Rule 26, Rule 37(a)(1) allows the other party to move for an order compelling disclosure or discovery. The motion to compel may seek documents that a party has failed to produce after a request for production of documents made under Rule 24. Fed.R.Civ.P. 37(a)(3)(B)(iv). A party must engage in a goodfaith effort to resolve the issue before filing the motion to compel, and it must provide certification of those efforts when filing the motion. Fed.R.Civ.P. 37(a)(1). The Court agrees with Defendants' assertion that Plaintiffs' Memorandum in Opposition is an inadequate response to the Motion to Compel. Plaintiffs made no effort to describe their efforts to find the documents in question, and they do not even address their failure to produce documents that they themselves allege exist in the Complaint, such as the journal and the s.

10 However, because Defendants did not provide Plaintiffs' actual objections or responses to the Interrogatories and Requests for Production of Documents, the Court does not know if Plaintiffs' original objections were more descriptive of their efforts, or if Defendants were provided with more explanatory responses or objections to the requests. for these reasons, the Court finds that it cannot rule on the Motion to Compel. See Peterson v. Kramer, 2015 WL (S.D. Ohio April 29,2015). METADATA GENERALLY 126 Am. Jur. Proof of Facts 3d 281 (February 2016) ESI includes data or data compilations... stored in any medium from which information can be obtained either directly or... after translation by the responding party. Fed.R.Civ.P. 34(a)(1)(A). See Advisory Committee Notes on the 2006 Amendment to Rule 34(a) (stating that ESI may exist in dynamic databases and other forms far different from fixed expression on paper. Rule 34(a)'s amendment confirms that discovery of [ESI] stands on equal footing with discovery of paper documents. Metadata can be extracted from data. Metadata, or data about data, can be defined as either information describing the history, tracking, or management of an electronic document or information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D.Kan.2005) [M]etadata can come from a variety of sources; it can be created automatically by a computer, supplied by a user, or inferred through a relationship to another document. Id. at Data or database metadata could be the key to showing the relationships between data. Id. at 647. See Helget v. City of Hays, Kans. 300 F.R.D. 496 (D. Ks. 2014)

11 Fed Rule 37(e) e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. In Bry v. City of Frontenac, 2015 WL (E.D. Mo. 2015) FN 7, even if Defendants had failed to preserve electronically stored information, then the Court would still need to enter summary judgment in favor of Defendants. The Court finds that no evidence indicating that Defendants acted with the intent to deprive another party of the information's use in the litigation. Fed. R. Civ. P. 37(e)(2). Rather, the evidence indicates that the electronically stored information was taped over pursuant to a Frontenac SOP. Because there is no evidence of an intent to deprive another party of the use of this information, the remedies under Fed. R. Civ. P. 37(e)(2), including an adverse inference instruction, dismissal of this action, and default judgment are not available to Plaintiff. Under Fed. R. Civ. P. 37(e)(1), the Court is limited to order measures no greater than necessary to cure the prejudice. Because an adverse instruction is not within the range of possible curative measures, the Court does not believe that any sanction imposed for the destruction of electronically stored information would affect the outcome of this claim. See Stevenson v. Union Pacific Railroad Co., 354 F.3d 739, (8th Cir. 2004) (quoting Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 268 (8th Cir. 1993)

12 ( 'whether the extent of a sanction is appropriate is a question peculiarly committed to the district court '). SAMPLE DISCOVERY LANGUAGE INTERROGATORY: Identify any and all social media sites in which you have participated and/or established a profile for from to the present, including but not limited to Facebook, MySpace, LinkedIn, and YouTube. If your answer to this Interrogatory is in the affirmative, please provide your login name, profile information for each site and all posts regarding. INTERROGATORY: Identify all social media sites you were posting on or reading on (date) between the following times:. REQUEST FOR PRODUCTION: An electronic copy of Plaintiff s complete Facebook history, including any and all profile information, postings, pictures, and data available pursuant To Facebook's Download Your Own Information feature, and for each site all posts regarding. REQUEST FOR PRODUCTION : An electronic copy of any social media sites identified by Plaintiff in her answer to Interrogatory No., including but not limited to all updates, changes, or modifications of Plaintiffs profile, any photographs or videos posted by Plaintiff or anyone on Plaintiffs behalf, all status updates, messages, wall comments, causes joined, groups joined, quizzes taken, activity streams, blog entries, details, blurbs, comments, and applications for the period from to the present. Please provide an electronic copy of this information, or a hard copy to the extent an electronic copy is not available. REQUEST FOR PRODUCTION: If you are a member of or belong to any social networking website(s) (i.e. Myspace, Facebook, Twitter, Instagram etc.), or utilized an account, blog or a website related to your individual activities, please provide all documentation on these sites created within 48 hours before and after. This request includes but is not limited to a documented copy of all screen names; news feeds; profile pictures and/or information; messages sent and received; contents of any inbox; activity streams; tweets; comments; notifications; notes regarding the accident on, injuries claimed from said accident, or Defendant.