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Age of the Hashtag: Social Media in Trucking Cases

Social networks are a pervasive, inescapable part of modern life. Information spreads on social media at a staggering pace and to a staggering extent. The world’s largest social media site, Facebook, has nearly 2 billion users worldwide. The President of the United States famously – or infamously, depending on your political bent – uses Twitter to instantly and directly speak to 27 million followers. Some parents create a profile for their newborn to help document the child’s early life. Most users utilize social media to inform their family, friends, or sometimes the world at large about their opinions, mental state, or physical condition … just because. It is truly remarkable the information people will share on social media. So when trucking litigants use social media, their activities may affect their case. That is why it is critical for trucking carriers, drivers, insurers, and their attorneys to be aware of the social media activity that affects the industry generally, and their case specifically.

There is a wide variety of social media platforms, but all have the same basic structure. The social media provider (i.e., Facebook, Twitter, LinkedIn) creates a website and/or mobile application which has four core capabilities: 1) users can create accounts a/k/a “profiles” to become members of that particular social network, 2) users can connect their accounts to other members’ accounts, 3) users can communicate electronically with other users, and 4) users can generate their own original content and/or share content posted by other users, which can then be viewed by other users. In truth, the content generated by the user is electronic data that the provider uploads from the user’s device to its own data servers. The provider stores all that data and makes the content available for viewing by its users, according to its terms of use and the individual user’s privacy settings. Some providers “save” content, making the user’s content visible permanently or semi-permanently, at any time in any location worldwide. Other providers automatically “delete” the content, making it visible only for a short period of time or only in a designated geographic area.

In trucking litigation, the communications and content created or shared by a plaintiff can be a gold mine of information which can be put to use in a case – if you can get it. Courts have only recently begun to tackle the issue of social media content in litigation. “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.” Ye v. Cliff ViessmanInc., No. 14-cv-01531, 2016 U.S. Dist. LEXIS 28882 at *4 (N.D. Ill. March 7, 2016). Social media content requires the application of established discovery principles to a new context. Appler v. Mead Johnson & Co., LLC, 3:14-cv-166, 2015 U.S. Dist. LEXIS 128182 (S.D. Ind. Sep. 24, 2015). Court rules allow parties to engage in broad, liberal discovery regarding any matter that is relevant to a party’s claim or defense, and is proportional to the needs of the case. See Federal Rule of Civil Procedure 26(b)(1). This includes information which is not itself admissible, but is reasonably calculated to lead to the discovery of admissible evidence. Appler, 2015 U.S. Dist. LEXIS 128182, at *4.

Obtaining evidence from social media platforms which “save” content, such as Facebook, Twitter, or LinkedIn, is relatively straightforward. Defendants can use the broad discovery rules to obtain an opponent’s relevant posts, shares, events, and even private messages from the opponent’s account(s). Through written interrogatories, defendants are entitled to discover the social media platforms for which the plaintiff maintains an account, what his username(s) are, how long he has had his account(s), and whether he has communicated with others on the platform about issues relevant to the case. Through written requests for production of documents, defendants are entitled to the plaintiff’s social media documents themselves. Since the communications and content are available to plaintiffs through their own account, plaintiffs must search their own social media account(s) and produce copies of any original content or communications which are relevant to the issues in their case.

Platforms which “delete” content, such as Snapchat, Yik Yak, or Erodr, pose a more difficult challenge for defendants. The content is ephemeral. After it is sent or initially viewed, the plaintiff cannot access it from his own device. Since the plaintiff cannot access the content from his own account, the defendant will have to subpoena the provider. The provider, however, can extract the data/content from its servers and provide it to the defendants. However, many platforms, particularly the ephemeral content platforms, were created specifically to be temporary, anonymous, and unreachable. These providers often have strongly held beliefs about user privacy. Even though the plaintiff has put his communications, mental state, and/or physical condition at issue in a lawsuit, ephemeral social media providers may be reluctant to cooperate. They may only keep the plaintiff’s content on their servers for a short time. In such cases, it is necessary to act quickly to preserve the data and it may become necessary to obtain an order from the court compelling production.

Once the plaintiff’s social media content is obtained, defendants must develop a strategy to use it effectively. So long as the content itself is authentic (not the result of someone’s account being hacked) and relevant to the issues of the case, it is admissible. How social media content should be used should be determined on a case-by-case, document-by-document basis. Photos of the plaintiff in a sumo wrestling suit two weeks after an accident may be very useful substantive evidence of the plaintiff’s physical condition – and devastating impeachment evidence if he testifies he is unable to stand up under his own power. A status post about how happy a plaintiff is to have gotten a new job can help establish the settlement value of a claim for emotional distress damages or future lost wages. Conversely, if a driver commented on his social media account that he was on a tight deadline or wasn’t paying attention at the time of the accident, such evidence may be used against the defendants. Social media content can be a powerful weapon, even at times, a double-edged sword. Defendants should look to use it advantageously. Given the remarkably free-wheeling content generated by many users, it is worth looking into the plaintiff’s social media account(s). It could turn up nothing – but it could turn up the most important evidence in your case.

© 2017 Heyl, Royster, Voelker & Allen, P.C

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About this Author

Mitch Hedrick, Litigation Attorney, Heyl Royster Law FIrm
Associate

Mitch focuses his practice in the area of civil litigation, including railroad litigation, insurance coverage, commercial motor carrier litigation, and tort litigation. A native of Peoria, Mitch joined Heyl Royster as an associate in 2013. Prior to joining Heyl Royster, Mitch practiced commercial litigation and labor & employment law with a firm in Chicago.

While in law school, Mitch participated in the University of Dayton School of Law's J.D. in Two Years Program. He was a Dean's Scholar and earned a CALI Award for Excellence in Complex Litigation. Mitch was a law clerk for...

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