Is Privacy Obsolete in Modern Litigation?
By Bart R. Valdes, Esq. (Mr. Valdes is a Partner in the Firm’s Tampa Office and is the Chairman of the Electronic Discovery and Digital Evidence Committee of the Business Law Section of the Florida Bar)
Within the past decade, the introduction and widespread adoption of social media use by individuals and corporations, as well as the use of tablets, smartphones, cloud storage, and other new technologies, has dramatically expanded the number and types of available sources of electronically stored information (“ESI”). ESI is everywhere today, and almost everyone is using email and cell phones to communicate. Valuable information can be uncovered from these various sources of ESI if litigation ever arises.
It is important to remember the types of devices that contain discoverable information in a lawsuit. Such devices include not only the traditional hard storage devices (computer servers and desktop computers) but also cloud accounts, personal smartphones and tablets, social media accounts, remote servers, third-party servers, printers, copiers, other removable media (such as USB drives, SD cards and SIM cards, and discs), and wearable technology. There are many operations that create digital evidence such as location services on cell phones, search histories, or data recorded when connecting your phone to a car’s hands free system. All of this data is recorded and may exist for a very long time.
Even if your cell phone is broken or lost, or even if your Facebook account is closed, it may still contain information that can be located and produced to the other side in a lawsuit. Wearable technology such as a FitBit tracks information about the wearer’s heartbeat, activity levels, sleep cycles, and other health data, which can be downloaded in a lawsuit. Other data that was once on a cellular telephone, such as text messages or photographs, may be located in cloud storage even if they are no longer on the cellular telephone. As such, remember that your movements and your activities can be reconstructed in some situations long after an event.
Also, many devices store metadata when using a program or app. Metadata is hidden information about the electronic data or file that “describes how, when, and by whom an electronic document was created, modified, and transmitted.” In documents or emails, metadata typically contains information such as the author of the document, when the document was last accessed or edited, and what alterations have been made to the data. Metadatacan also reveal when and where a picture was taken. It can show where someone was located when they made a Facebook post. In other words, metadata can be a smoking gun in some instances.
No discussion of ESI is complete without talking about social media. Social media is used by approximately 74 percent of all internet users, and can be a valuable source of gathering information on potential witnesses. Further, courts are increasingly allowing parties more latitude in discovering social media information where relevant to the claims at issue. Since social media information is so readily available, especially if the user has not taken advantage of a network’s available restricted privacy settings, social media information can easily be accessed by the other side. You Tube videos, internet blogs, Facebook, Instagram and Twitter posts, as well as content on websites, is all fair game in a lawsuit. As a result, you should always be careful about what you write or say, even if you believe your text, e-mail or post is private. An innocent statement can be taken out of context when shown to a judge or jury. A joke can be funny at the time but appear to be in poor taste later. Simply put, if you would be ashamed to see it on the front page of the newspaper, or if you would be embarrassed to show it to your mother, then do not put it in writing.