Judge: Taking Your Facebook Account Private During Litigation Isn't Exactly 'Preserving Evidence'

from the 'sharing' dept

Wed, May 18th 2016 3:36pm — Tim Cushing

If your social media "presence" has been submitted as evidence, you'd better leave everything about it unaltered. That's the conclusion reached by the judge presiding over a Fair Housing Act lawsuit. The plaintiff didn't go so far as to delete Facebook posts relevant to the case at hand, but did enough that the defense counsel (representing the landlord) noticed everything wasn't quite the way it was when the plaintiff was ordered to preserve the evidence.

According to one of the lawyers for the defense, she accessed plaintiff’s accounts at one point despite not being “friends” with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion.

Whether or not the plaintiff was telling the truth about the Facebook account's privacy settings ultimately doesn't matter. She changed something after being instructed not to. This resulted in posts being hidden from public view. According to the court, this flip of a digital switch was a violation of the order to preserve evidence.

By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view.

There were no sanctions for this action. Just a few stern words from the judge. The damage done was minimal as the defense counsel was still able to obtain the "missing" posts. The plaintiff herself offered to print out the hidden posts in an effort to comply with the order. Of course, this offer came after she had altered the privacy settings and the defense counsel had noticed the alteration.

The damage, however, could cost the plaintiff her case, even if the judge isn't going to issue sanctions for violating a preservation order and even though the defense was able to recover the missing posts.

Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.

As Venkat Balasubramani points out, changing privacy settings on relevant social media accounts during litigation is something to do "at your own peril." In this case, the damage was minimal. At most, the plaintiff undercut her own credibility. That may cost her a positive ruling, but it won't result in anything more serious like jail time.

What is a larger problem are the federal rules for evidence preservation, which include preserving evidence you possibly won't even know is evidence until you've been indicted. As we've seen in the past, rules meant to prevent corporations from using culpatory documents for bonfire fuel are instead being used by the feds to stack charges against defendants who've done normal computer housecleaning, like culling hard drive clutter or clearing their browser history.

Sarbanes-Oxley says evidence -- which now apparently includes every bit of your digital presence in addition to physical files -- relevant to "foreseeable investigations" must be preserved. Since citizens don't initiate investigations, the ball is completely in the government's court, and every investigation seems "foreseeable" once it's underway. Those being investigated may not have seen it coming, but they're still saddled with a post facto requirement to preserve evidence dating back to whatever arbitrary point the government declares to be the beginning of the alleged wrongdoing. Civil litigants may get away with nothing more than some words from an irritated judge, but federal defendants won't be nearly as lucky. Thanks to the misuse of this law, anyone changing privacy settings to a social media account does so "at their own peril."

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Filed Under: evidence, social media
Companies: facebook

20 Comments

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Fb User, 18 May 2016 @ 4:31pm

Soon... If someone else tags me that tag shows up on my Facebook feed. But that other person can also adelete stuff off my Facebook page on their own just as easily as they add stuff. What happens when that person is not subject to the order?

In this case the individual under order made the changes. What happens when it is someone else?
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Anonymous Coward, 18 May 2016 @ 4:47pm

This is baloney. Making posts private doesn't get rid of them, and the opposing attorneys are free to file discovery requests.

It's ridiculous to think that people should have to preserve their social media accounts exactly as they are - including all privacy settings - for the length of a civil action which has already, as far as I can tell, taken years.
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Anonymous Coward, 18 May 2016 @ 5:08pm

Re:
They stick a live snake up your ass
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Anonymous Coward, 18 May 2016 @ 5:50pm

Re:
I have to agree. Setting her account to private is like taking evidence off your desk and putting it in a locked filing cabinet.

Unless the court order explicitly said to preserve the privacy settings the judge is out of line. If they are going to be so nit-picky are they also going to hold her in contempt if someone else likes a bunch of her posts? That's a change too -- one that could be prevented by taking it private.
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Yakko Warner (profile), 18 May 2016 @ 6:14pm

I consider her lucky.
Considering how badly tech issues seem to get handled in courts (though maybe that's just bias considering this is a website that tends to report the bad issues), I think she's lucky the judge didn't overreact, assume the evidence was deleted, and give her a hefty fine or prison term.
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John Fenderson (profile), 18 May 2016 @ 7:09pm

Re:
It's not ridiculous at all, particularly if you've submitted them as evidence. Once it's evidence, you don't alter it in any way. It's a very fundamental rule that has been around for longer than the US because without it, determining truth can become the next best thing to impossible.
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Anonymous Coward, 18 May 2016 @ 7:19pm

this is crazy. i'm scared to vacuum my carpet.
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Anonymous Coward, 18 May 2016 @ 10:16pm

Re: Re:
If it was actually *submitted* as evidence, it wouldn't still be on Facebook's servers *capable* of being changed.

And yes, it's ridiculous. It's slightly less ridiculous if the privacy settings themselves are at issue. But it's still ridiculous to tell someone they can't use their social media account for a few years.
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Anonymous Coward, 19 May 2016 @ 1:34am

Sarbanes-Oxley says evidence ... relevant to "foreseeable investigations" must be preserved.
I can honestly say, with confidence, that if I'm doing something that gives me even the slightest reason to foresee a criminal investigation, Sarbanes-Oxley can suck it. I'm torching everything.
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US DOJ, 19 May 2016 @ 5:48am

Re:
Thanks for the admission of evidence tampering. We'll be seeing you shortly.
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Coyne Tibbets (profile), 19 May 2016 @ 6:34am

Destruction of evidence matters if peons do it
Sarbanes-Oxley is pretty toothless, though. Outside of Arthur Andersen, when is the last time you actually heard of a company getting more than a toe-tap for destroying evidence? And it's pretty easy to get around legally: "Your honor, we have a data destruction policy. It was accidentally destroyed pursuant to that policy." In worst case, punished by a fine amounting to about 0.05% of the CEO's annual salary.

Then there's the government. What's the latest we heard? Oh, right, CIA "accidentally" destroyed a document it was ordered to keep. Too bad, think they'll be punished? (Ha, ha.)

Destruction of evidence pretty much matters only if you're a peon. Corporations and bureaucracy thumb their noses at these rules and orders, all the time.
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Adam V, 19 May 2016 @ 6:42am

Date Mismatch?
Hang on, these dates are confusing me...

> The reasonable conclusion from the evidence adduced at the hearing is that Thurmond’s Facebook account was publically accessible until approximately May 15, 2015

> By altering her Facebook account, Thurmond violated the Court’s May 21 order.

Am I missing something, or did she make the change *before* the order was given?
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md mehedi sarkar, 19 May 2016 @ 7:03am

personal
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Anonymous Coward, 19 May 2016 @ 7:34am

um
Isn't making a profile private the only way she can ensure no-one alters it?
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crade (profile), 19 May 2016 @ 7:46am

Re: Re:
Unfortunately, a live public facebook account something constantly altered and not something that is possible to not alter in any way. You have the choice of letting it decay quickly away from what it was at the time or taking steps to preserve it as it was.
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John Fenderson (profile), 19 May 2016 @ 9:55am

Re: Re: Re:
I assume that the issue is the posts that the facebook account holder made, not the posts others made that appear on his timeline. Is that not the case?
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Anon, 19 May 2016 @ 11:21am

Another Issue
Another interesting point - You're being sued for defamation or slander or something. On the off chance that you may lose the case, isn't there some common sense principle that says "withdraw your remarks from 'publication' ASAP"? After all, this is the first thing some people demand during with their first letter from a lawyer. The court basically ORDERING you to leave offending material in public view is sort of a contradiction to the usual.

If tagging is altering the content, then logically there is no way to preserve the data short of being the Facebook sysadmin and making a full backup.
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Coyne Tibbets (profile), 19 May 2016 @ 12:23pm

Re: Date Mismatch?
As of the filing of the motion, the court effectively requires that the evidence not be spoiled, everything frozen, until the judge issues a ruling on the motion. (That is necessary because otherwise everyone would simply burn the evidence the moment a motion is filed.)

The article is quite clear she made the change after the spoilation motion was filed.
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GrooveNeedle (profile), 19 May 2016 @ 4:14pm

Re:
Technically, those are posts on the other person's Timeline, and merely relayed to yours and seen by your friends. I would say they don't count as far as preserving evidence.

The trick is getting a judge technical enough to understand that distinction.
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John Fenderson (profile), 19 May 2016 @ 7:09pm

Re: Re: Re:
I've been thinking more about this, and I think I've come around closer to your point of view here.
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