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The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Social Media Admissions in Insurance Litigation: Investigative Strategies, Spoliation Warnings, Use of Subpoenas to Obtain Evidence Finding and Obtaining Evidence Adverse to Opponents From Twitter, Instagram, Facebook, YouTube and Other Sites Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JUNE 7, 2017 Donald Patrick Eckler, Partner, Pretzel & Stouffer , Chicago D. Carolina Lopez, Vocke Law Group , Chicago

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social media admissions in insurance litigation: investigative strategies, spoliation warnings, use of subpoenas to obtain evidence Carolina Lopez Donald Patrick Eckler Vocke Law Group Pretzel & Stouffer, Chartered311 S. Wacker Dr., Suite 2250 One S. Wacker Dr., Ste. 2500 Chicago, IL 60606 Chicago, IL 60606 312-854-1107 312-578-7653clopez@vockelawgroup.com deckler@pretzel-stouffer.com

I. Locating social media posts by opposing parties and third parties II. Discovery requests regarding social media accounts III. Spoliation warning letters IV. Subpoenas to social media sites for evidence to be used at trialV. Admissibility of social media posts at trial VI. Recent case law regarding spoliation of social media evidence 6

Why do you want this information? Social media information is the new surveillance video Potentially provides admissions by the insured It is likely to be found reliable by judges and juries Like DNA and other forensic evidence in criminal trial, it may be expected by factfinders 7

Why do you want this information? State Farm and Casualty Co. v. Rollins, WL 2773051 (E.D. Va. May 12, 2016) – social media showed that the insured was using property for child care serves and that activity was not covered Nationwide Mutual Fire Insurance Co. v. Almco, Ltd., 2016 WL 1452327 (D.D.C. Apr. 13, 2016) – application for insurance was for a deli, but social media showed it was a nightclub 8

Locating social media posts by opposing parties and third parties Where to look? Big Four: Twitter, LinkedIn, Facebook and Instagram Pinterest, Yelp and Snapchat should also be reviewed 9

Locating social media posts by opposing parties and third parties In the case of a commercial insured, you can often find what sites they are on by looking on their website In cases on individuals, using Google is often very effective. Many people do not have privacy settings on so you can access their complete postings 10

Locating social media posts by opposing parties and third parties Counsel must be careful not to “friend” or “connect” with the insured Potential ethical violations may result. Robertelli v. New Jersey Office of Attorney Ethics, 2016 N.J. LEXIS 232; New York State Bar Association, Ethics Opinion No. 843; Illinois Rules of Professional Conduct Rules 4.2, 5.3, and 8.4(a). You also don’t want the target of the investigation to know they are targeted so they keep postingThere are companies that will do social media searches for you11

Locating social media posts by opposing parties and third parties When you find a source, print out all you find, so it is preserved for later use You also want to look at friends and connections as they may have information related to the insured This could also lead to related events or businesses that may have additional information 12

Discovery requests regarding social media accounts Impson v. Dixie Electric Membership Corp., WL 9413122 (M.D. La. Dec. 22, 2015) – insured was ordered to produce social media posts after date of injury, even private sections as those posts were shared with third-parties Ye v. Cliff Viessman , Inc., 2016 U.S. Dist. LEXIS 28882, 14-cv-01531 (N.D. Ill March 7, 2016) – limits on overbroad nature of discovery requests13

Discovery requests regarding social media accounts Keller v. National Farmers Union Property & Casualty Co., 2013 WL 27731 (D. Mont. Jan. 2, 2013) – must have sufficient reason to see non-public section of social media accounts McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (2010) – request for social media discovery in uninsured motorist case was denied because it was a “fishing expedition” 14

Discovery requests regarding social media accounts Direct access to social media accounts by court order Direct access to social media accounts by consent 15

Discovery requests regarding social media accounts Access by subpoena will be discussed later Likeliest means is for opposing party to produce relevant social media information Also a possibility of in camera review 16

Discovery requests regarding social media accounts Requests for production and interrogatories Consider making specific requests for account access information Request the existence of certain accounts and for online identities In view of the probability of not getting account access information, ask for copy of the documents from various accounts 17

Spoliation warning letters Generally, parties have a duty to preserve relevant information, including social media information, if it is “reasonably foreseeable” that such information is relevant. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); see also Zubulake v. UBS Warburg LLC (“Zubulake IV”), 220 F.R.D. 212, 216 (S.D.N.Y. 2003); Kippenhan v. Chaulk Services, Inc., 428 Mass. 124, 127 (1998).The social media platforms have various methods to preserve information18

Spoliation warning letters A pre-suit demand letter or even an oral threat of litigation before suit is commenced may be deemed sufficient to trigger such a duty. See UMG Recordings, Inc. v. Hummer Winblad Venture Partners (In re Napster, Inc. Copyright Litig .), 462 F. Supp. 2d 1060, 1069 (N.D. Cal. 2006); Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 244 F.R.D. 614, 622-23 (D. Colo. 2007). A pre-suit demand letter that explicitly threatens impending litigation would trigger an obligation to preserve evidence, a letter implying that a negotiated resolution is preferred is likely insufficient. See Cache La Poudre Feeds, LLC, 244 F.R.D. at 622-23.19

Spoliation warning letters Once the duty to preserve evidence arises, a company must suspend any routine document retention/destruction policies it may have an issue a “litigation hold.” which ensures the preservation of relevant documents and electronically stored information. See Zubulake IV, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). The failure to do so could result in sanctions based on spoliation of evidence, such as dismissal of a claim or defense, granting judgment in favor of a prejudiced parties, suppression of evidence, an adverse inference (referred to as the spoliation inference), fines, or attorneys’ fees and costs. See MOSAID Techs. Inc. v. Samsung Elecs . Co., 348 F. Supp. 2d 332, 335 (D. N.J. 2004).20

Spoliation warning letters Under the Federal Rules of Civil Procedure, sanctions may not be imposed for failing to provide electronically stored information lost as a result of “routine, good-faith operation of an electronic information system,” absent exceptional circumstances. Fed. R. Civ. P. 37(e). Assiduous preservation adherence to a litigation hold and preservation of information is typically the best policy. 21

Subpoenas to social media sites for evidence to be used at trial Parties can attempt to obtain relevant social media evidence directly from social media serve providers but this can be challenging as the providers may fight the subpoena on privacy grounds. See generally Joshua Briones and Ana Tagvoryan , Social Media as Evidence 40 (2013). Obtaining evidence directly from providers implicates the Stored Communications Act (SCA) which was passed by Congress in 1986 as part of the Electronic Communications Privacy Act (ECPA). The SCA (generally) prevents providers of communications (made through certain defined services which includes Internet-service providers) from voluntarily disclosing private communication (specifically the content of those communications). See 18 U.S.C. Chapter 121 §§2701-2712.For example, Facebook states it will disclose account records solely in accordance with its terms of serve and applicable law, which includes the SCA,. For a civil matter, Facebook requires a “court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to” basic subscriber records “which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.” See https://www.facebook.com/safety/groups/law/guidelines. 22

Subpoenas to social media sites for evidence to be used at trial One of the earliest (and most analyzed) cases to address the issue of the applicability of the SCA to social media service providers was Crispin v. Christian Audigier , Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), where a federal court in the Central District of California quashed subpoenas to Myspace and Facebook because some of the content on those sites is protected by the SCA. The court held the plaintiff had standing to bring the motion, stating “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. The court further held that provide messaging and email services provided by these providers constitute an electronic communication service and that these private portions of social networking sites are not subject to subpoena under the SCA, because such messages were not readily accessible to the general public and are inherently private.23

Subpoenas to social media sites for evidence to be used at trial Despite the limitations of the SCA, it is well established “courts have been unwilling to recognize a reasonable expectation of privacy for material people willingly post on the Internet without taking any measure to restrict access to them, or otherwise protect them.” See Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U. L. REV. 1, 21 (2009-2010). Courts however will deny subpoenas found to be a “fishing expedition” and which “cast too wide a net for information” that may be relevant and discoverable. Courts prefer a more narrowly tailored request on some basis, beyond mere speculation, to support a reasonable and particularized belief of the relevance of the information. See e.g. Mackelprang v. Fidelity National Title Agency of Neveda, Inc., 2007 WL 119149 (D. Nev. Jan 9, 2007) and T.V. v. Union Township Board of Education, No. UNN-L-4479-04 (N.J. Super. Filed Dec. 22, 2004).24

Subpoenas to social media sites for evidence to be used at trial Given the issues faced when issuing subpoenas to social media sites, a better approach is to obtain the discovery directly from the other party, as outlined above. If this is unsuccessful, depending on the service provider, the limitations of the SCA can (generally) be avoided if the user signs a consent and authorization form for its release as permitted by the SCA. If the party refuses, a court can compel the party to execute the release. With an executed authorization and a properly issued subpoena (that is narrowly tailored), parties should be able to obtain the requested social media discovery. 25

Admissibility of social media posts at trial The preeminent case on understanding the law governing the use of electronic records as evidence in court is Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) which concluded a proponent of electronically stored information must clear the following evidentiary hurdles: Relevance, see Fed. R. Evid. 401. Authenticity, see Fed. R. Evid. 901(a).Hearsay, see Fed. R. Evid. 801.If hearsay, is it covered by one of the exceptions? See Fed. R. Evid. 803, 804, or 807 .Requirement of an original writing and if none, a duplicate, see Fed. R. Evid. 1001-1008. Unfair prejudice, see Fed. R. Evid . 403 . 26

Admissibility of social media posts at trial Test for Relevance: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.   Authentication: can be simple or complex.Simple method is via: stipulations, Fed. R. Civ. Pro. 36 – Requests for Admissions, obtained via discovery from other party (applicable in some jurisdictions)Complex method via: examples outlined in Fed. R. Evid. 901(b) like testimony of a witness with knowledge or evidence about a process or system. Whichever method is used, per Lorraine v. Markel Am. Ins. Co. , the proponent must offer a satisfactory foundation or sufficient proof so that a reasonable juror could reasonably find the evidence is authentic. 27

Admissibility of social media posts at trial Test for Hearsay: Fed. R. Evid. 801. Definitions That Apply to This Article; Exclusions from Hearsay The following definitions apply under this article:(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant. “Declarant” means the person who made the statement.(c) Hearsay. “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and(2) a party offers in evidence to prove the truth of the matter asserted in the statement.Examples: Smith v. State, 2013 WL 2400393 (Miss. Ct. App. June 4, 2013) (automatic email notification stating Facebook member received message and content of message was not hearsay); You Fit, Inc. v. Pleasanton Fitness, LLC, 2013 WL 521784 (M.D. Fla. Feb. 11, 2013) (Yelp review and comments covered by exception to hearsay as evidence of “actual confusion” and “then-existing mental state of declarant”); People v. Oyerinde, 2011 WL 5964613 (Mich. Ct. App. Nov. 29, 2011) (Facebook messages from defendant to victim admitted as “admissible non-hearsay” per state evidence rules); 28

Admissibility of social media posts at trial Original or Duplicate: Original: for electronically stored information, Fed. R. Evid. 1001(d) requires any printout if it accurately reflects the information. Duplicate: Fed. R. Evid. 1003 states a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.  Unfair Prejudice:Per Fed. R. Evid. 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.Examples: Quagliarello v. Dewees, 2011 WL 3438090 (E.D. Pa. Aug. 4, 2011) (allowing some but not all photos from plaintiff’s MySpace page as relevance to emotional distress claim was outweighed by unfair prejudice); State v. Townsend, 208 N.C. App. 571 (court denied request to allow testimony about Facebook and MySpace postings because probative value substantially outweighed by danger of unfair prejudice). 29

Recent case law regarding spoliation of social media evidence: Example of the danger of deleting social media evidence:  Congregation Rabbinical Coll. of Tartikov , Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352 (S.D.N.Y. 2015). Religious congregation brought action against village challenging certain zoning and environmental ordinances. Congregation moved for summary judgment on several of village's affirmative defenses and for sanctions due to spoliation of evidence. The court held village and its mayor had an obligation to preserve a social media posting and related text messages as of the date of the social media posting, where social media post was made nearly six years after the litigation was commenced and a litigation hold was put in place. Village and its mayor's bad faith and a clear intent to deprive religious congregation of evidence in the form of a social media post and related text messages was sufficiently clear from the face of the record and the appropriate sanctions for village's destruction of social media posting and related text messages was an adverse inference instruction, which permitted the jury to infer the information not produced or destroyed was prejudicial. 30

Recent case law regarding spoliation of social media evidence: Example of the danger of deactivating social media profiles:  Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D. N.J. Mar. 25, 2013). Plaintiff, a ground operations supervisor claimed he was injured while unloading bags from an airplane when a nearby plane bumped a staircase into him. Defense counsel sought production of plaintiff’s social media information but he refused to sign a release for Facebook. During motion practice on the refusal to sign the release, plaintiff deactivated his account and a motion for spoliation followed. The court did not impose monetary sanctions but did give the jury an adverse inference instruction. 31

Recent case law regarding spoliation of social media evidence: Examples of the danger of deleting and deactivating social media evidence:  Lester v. Allied Concrete Co. , 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. Sept. 6, 2011). Although the wrongful death plaintiff lost his wife in a tragic accident, his Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.” The trial court found plaintiff’s lawyer had instructed his paralegal to “clean up” plaintiff’s Facebook page and plaintiff to deactivate his account. This resulted in a sanction of $542,000 against the lawyer and $180,000 against the plaintiff. 32

Recent case law regarding spoliation of social media evidence: Contrast the above with Katiroll Company, Inc. v. Kati Roll and Platters, Inc. , No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011). Here the court determined defendant technically committed spoliation when he changed his Facebook profile picture, where the picture at issue was alleged to show him infringing plaintiff’s trade dress. Instead of monetary or evidentiary sanctions, the court ordered defendant to coordinate with plaintiff’s counsel to change the picture back to the allegedly infringing picture for a brief time during which time plaintiff could print whatever posts it believed to be relevant. The court decided not to award sanctions as plaintiff had not explicitly requested defendant preserve his Facebook account as evidence. The court concluded the spoliation was unintentional as it would not have been immediately clear to defendant that changing his Facebook profile picture would constitute the destruction of evidence. This should serve as a notice to counsel to issue a spoliation warning letter related to social media specifying what type of information (e.g. pictures, posts, and activity, etc.) must be preserved.   33

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