Exploring the Newly Enacted Massachusetts E-Discovery Rules

49 New Eng. L. Rev. On Remand 85 (2015)

INTRODUCTION

Vast amounts of personal information is placed on social media profiles and websites daily; as a result many attorneys are avidly seeking to use the material as evidence—“It’s one thing to make a fool of yourself in public, but some folks seem to excel at stupidity in front of the entire world.”¹ Millions of Americans spend an enormous amount of time on social media interacting with family, friends, and rekindling past relationships; a danger in posting information to these sites is that the information may be used in court due to the scope of electronic discovery (“e-discovery”).²

Although not all states have enacted specific e-discovery rules, the effect of e-discovery is drastic due to the abundance of easily accessible information.³ As the intricacies of electronically stored information (“ESI”)⁴ grow because of developments in technology, the need for efficient discovery management grows as well.⁵ “Even without having to worry about social media, preservation of electronic information is fraught with danger.”⁶ In January 2014, Massachusetts amended its Rules of Civil Procedure to include e-discovery rules.⁷ From an efficiency standpoint, amendments should be made to specifically address issues with social media and the authentication of electronic information.⁸

Part I of this Note discusses the differences between traditional discovery and e-discovery. Part II argues that the recently enacted Massachusetts e-discovery rules will be more efficient than the Federal e-discovery rules. Parts III and IV argue that amendments must be made to the Massachusetts rules addressing social media and authentication issues. These Parts further propose standards for such amendments.

I. Background

A. Electronic Discovery Differs from Traditional Paper Discovery

Discovery is the process by which parties are able to obtain relevant information regarding a pending lawsuit in advance of trial from adversaries and third parties with minimal court involvement.⁹ The central premise of discovery is to narrow the dispute.¹⁰ Rule 26 of the Federal Rules of Civil Procedure (“FRCP”) sets forth the scope of discovery: non-privileged information that is relevant to a party’s claim or defense.¹¹ This rule pertains to documents and other tangible things.¹²

The FRCP were amended in 2006 to address discovery of ESI.¹³ Rule 26(b)(2)(B) provides a limitation on ESI production; a party may not be forced to produce this information if it is not reasonably accessible or too costly.¹⁴ More specifically, Rule 34 states that a party must produce or allow the requesting party the ability to inspect or test any ESI that is described with reasonable particularity including drawings, writings, charts, photographs, sound recordings, graphs, images, and other data compilations.¹⁵

1. Electronic Discovery

ESI is data that is “information created, manipulated, communicated, stored, and best utilized in digital form . . . .”¹⁶ This data includes e-mails, websites, word processing files, and databases stored in the memory of computers and flash memory.¹⁷ E-discovery is the process of identifying, collecting, and producing ESI in response to an investigation or lawsuit.¹⁸ The world of e-discovery is “dynamic and fluid” because the sources of ESI available “are constantly changing.”¹⁹ Prior to the advent of social media sites, ESI consisted of emails, voicemails, instant messaging, spreadsheets, and videos; with the growing trend of social media sites, new sources are constantly emerging.²⁰

At the Sedona Conference, experts discussed the differences between traditional paper discovery and e-discovery, concluding that new rules were needed to facilitate the process of ensuring fairness in e-discovery.²¹ Major differences between paper and electronic discovery include: the volume, variety of sources, encrypted information, and the impossibility of truly deleting ESI.²²

Problems respecting e-discovery include preservation, spoliation, and production.²³ The duty to preserve is governed by the common law rather than the FRCP—this duty arises when a party is given notice that the information may become relevant in the litigation process.²⁴ Preservation protects potentially relevant information from deletion or alteration.²⁵ Spoliation occurs when evidence is destroyed or significantly altered; courts have wide discretion to impose sanctions for spoliation.²⁶ Production of this evidence can be hindered by the ability to retrieve information, necessary showing of good cause to have access to the information, and the cost associated with the production.²⁷

2. Traditional Discovery Rules Are Not Equipped to Deal with E-Discovery

Traditional discovery rules are not expansive enough to address the issues underlying e-discovery.²⁸ In traditional paper discovery the process is relatively straightforward for counsel and clients; however, the process is not as reliable with regard to e-discovery “because the life cycle of [ESI]” is more complex.²⁹ The complexity arises from a variety of issues including that electronic information: is often invisible; can only be accessed, decoded, and read with special software; creates authentication problems between original versions and copies; is massive in quantity; and can be stored easily in many different locations.³⁰

For these reasons it is no longer feasible for attorneys and clients to “count on traditional paper methods.”³¹ It has become clear to practitioners and courts around the country that simply modeling e-discovery rules on the traditional discovery rules will not work: “We’re all making this up as we go along . . . . Different courts are coming up with different solutions. It’s all over the map.”³²

B. E-Discovery Rules in Massachusetts Courts

Prior to the 2006 FRCP amendments, codified rules addressing e-discovery did not exist.³³ The amendments were intended to resolve issues pertaining to ESI and to provide guidance to the states.³⁴ These changes were not automatically adopted by all state rulemaking authorities.³⁵ Currently, thirty-five states have based their e-discovery rules, in full or in part, on the 2006 amendments to the Federal Rules, including Massachusetts.³⁶ Massachusetts’ recently-adopted e-discovery rules took effect in January 2014, which amended Rules 16, 26, 34, 37, and 45 of the Massachusetts Rules of Civil Procedure.³⁷ These amendments were recommended by the Supreme Judicial Court’s Standing Advisory Committee due to the vast increase of electronic data available today.³⁸ “[T]he staggering growth of information in electronic form” was the chief reason to propose electronic discovery rules in Massachusetts.³⁹

The new Massachusetts rules address four points: handling e-discovery issues early in litigation; dealing with “inaccessible” ESI; providing a possible remedy for an inadvertent disclosure of privileged information; and providing protection when ESI is lost in good faith.⁴⁰ One important change is the “clawback provision,” which is similar to Federal Rule of Evidence 502.⁴¹ This provision states that if privileged information is erroneously produced the receiving party should return or destroy the information until the privilege claim is resolved.⁴²

C. Social Media’s Impact on E-Discovery

Social media is defined as “any type of social interaction using technology . . . with some combination of words, photos, video and/or audio.”⁴³ Social media sites include Facebook, Twitter, LinkedIn, Myspace, Instagram, and various dating websites such as Match.com.⁴⁴ These sites allow individuals to share information about every facet of their lives.⁴⁵ In the United States about half of Internet users maintain a social networking profile.⁴⁶ The statistics regarding time spent on social media sites are overwhelming: users on Facebook share about 2.5 billion pieces of content daily and forty million photos are posted on Instagram every day.⁴⁷ The average user spends over three hours each day on social networking sites.⁴⁸ In December 2010 Americans spent over forty-nine billion minutes on Facebook, Twitter went from handling 20,000 tweets daily in 2007 to sixty-five million by 2010, and even a professional oriented site, LinkedIn, has over ninety million members.⁴⁹

It is essential for states to adopt specific e-discovery rules: “[T]he ever-evolving law and practice of eDiscovery . . . is not uniform even as between state and federal courts in the same jurisdiction. Precedent-setting opinions on eDiscovery disputes are rare, as appellate courts rarely pass on discovery decisions.”⁵⁰ Various hurdles come with admitting social media evidence—the evidence must be relevant and authentic.⁵¹ Despite these difficulties, attorneys are using these websites to discover evidence integral to their cases.⁵² Without specific rules, courts are split on whether to admit evidence from social networking sites.⁵³

E-discovery issues have become prominent in many areas including family and personal injury law.⁵⁴ A divorce case from Mississippi allowed a seventy-five page transcript of Facebook chats into evidence between a mother and former high school classmate that contained various explicit sexual references.⁵⁵ The evidence ultimately led the court to grant physical custody to the father.⁵⁶ In a personal injury action to collect damages from a car accident, the challenging party sought to introduce evidence from the plaintiff’s Facebook page depicting the plaintiff skiing after the accident.⁵⁷ The court decided to conduct an in camera inspection of the plaintiff’s Facebook profile to determine what information was relevant to the alleged injuries.⁵⁸

Conversely, in an employment discrimination case, an Ohio court denied a motion to compel user names and passwords for all of the plaintiff’s social media accounts because the request was overbroad.⁵⁹ The court concluded “The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.”⁶⁰

The uncertainty and lack of uniformity between courts regarding the admission of social media evidence in the course of e-discovery demonstrates the need for states to enact specific rules pertaining to social media instead of banning all evidence or allowing parties to go on “fishing expeditions” and permitting all evidence to be admitted.⁶¹

D. The Importance of Authenticating ESI

The preliminary rule addressing authentication of evidence is Federal Rule of Evidence 901.⁶² Before evidence is deemed admissible it must first be authenticated.⁶³ The process of authentication is satisfied when the evidence is “sufficient to support a finding that the matter in question is what its proponent claims.”⁶⁴ This is a relatively low burden which rests on the idea of conditional relevance.⁶⁵

Even though ESI from networking sites presents authentication problems, courts tend to utilize the traditional approach pursuant to Federal Rule 901.⁶⁶ The electronic evidence authentication process can be “a daunting—and sometimes impossible—task.”⁶⁷ The problems that arise when authenticating ESI include alteration of information and the creation of false and potentially damaging information.⁶⁸ The most common ways to authenticate evidence (or ESI) include: (1) testimony of a witness who has personal knowledge regarding the creation of the evidence; and (2) analyzing the original characteristics of the information.⁶⁹ As with many of the issues surrounding e-discovery, there are conflicting opinions between courts as to the proper method of authentication of this evidence.⁷⁰

ANALYSIS

II. The Massachusetts E-discovery Rules Are Clearer than the Federal Rules

A. The Massachusetts E-discovery Rules Provide More Clarity and Guidance than the Federal Rules of Civil Procedure’s E-discovery Rules

Even though Massachusetts e-discovery rules draw on the FRCP, key differences will provide Massachusetts courts with more specificity and guidance.⁷¹ States considering enacting e-discovery rules should follow the Massachusetts model, as opposed to the FRCP.⁷² The rules that deviate most from the FRCP are 16, 26, and 45.⁷³ Rule 16 addresses the scheduling and management of pre-trial conferences; the FRCP do not provide specific guidance for the management of such conferences.⁷⁴ Conversely, the amended Massachusetts rule adds precise provisions for the content that should be addressed at such conferences: (1) timing and scope of discovery; (2) preservation of the ESI; and (3) processes to assert privilege claims post-production.⁷⁵

Massachusetts Rule 26 pertains to a meeting and conferring requirement between all parties.⁷⁶ The FRCP mandate that there be an ESI conference between all parties at least twenty-one days before the pre-trial conference, but the plan set forth in the rule is extremely vague.⁷⁷ Although the amendment to Massachusetts Rule 16 does not make these conferences mandatory, it specifies that either party can demand a conference, in which case it must occur within thirty days of receiving a request.⁷⁸ The plan set forth by the Massachusetts rule specifies concrete issues that must be addressed if this conference is to take place, including: preservation, form, metadata, time, preserving claims of privilege, confidential statuses of parties, and expenses.⁷⁹ Rule 45 addresses subpoenas; under the FRCP subpoenas may be served on all parties who have access to the ESI.⁸⁰ The Massachusetts rule provides more protection for parties by allowing any person facing a subpoena to move the court for a protective order under Rule 26(c) or have entitlement to any protection previously laid out in the case relating to a discovery or procedural order.⁸¹

1. Support for the New Rules

Many practitioners are advocating for the new rules even though they will cause e-discovery proceedings to differ from what judges and practitioners are used to.⁸² The Massachusetts rules will end the inconsistency that has plagued this area of law: “[W]e now know that as a procedural matter, e-discovery will be guided by codified rules creating a mechanism to ensure [all parties] pay proper attention to how they address ESI.”⁸³ At the Boston E-discovery Summit in 2013, Attorney Fox of Bingham McCutchen expressed the need for codified rules, stating that around 1970 “discovery shifted from the fair-haired child, noble handmaiden of justice to its present persona, where it is perceived as a ravenous wolf . . . . Civil litigation may go the way of the horse and buggy if something isn’t done.”⁸⁴ The rules will make addressing e-discovery issues more structured⁸⁵ and are essential to close the gaps left by the Federal Rules.⁸⁶

2. It Is Beneficial that the Massachusetts Rules Differ from the FRCP

Although some states have adopted e-discovery rules resembling the 2006 FRCP Amendments, other states chose to enact their own rules.⁸⁷ The Massachusetts e-discovery rules that do not specifically follow the FRCP will be effective as evidenced by the success of states that have chosen to enact their own rules, such as Texas and New York.⁸⁸ These states believe that following the FRCP would produce many sweeping changes to state procedures, and thus have decided it is best to follow their own rules.⁸⁹

In 1999, Texas enacted rules addressing e-discovery prior to the 2006 FRCP amendments.⁹⁰ Texas Rule of Civil Procedure 196.4, “Electronic or Magnetic Data,” sets forth a detailed procedure to request and receive electronic information.⁹¹ Mississippi and Idaho adopted an approach to e-discovery rules resembling Texas’ rather than the Federal Rules.⁹² This implies that states’ rules may be a better alternative than strictly following the FRCP.⁹³

New York does not have specifically codified e-discovery rules, but follows the best practices guidelines issued by the New York State Bar Association.⁹⁴ Even without specific rules, New York has “[p]layed an important part leading the trend in the development of this area,” with the famous line of Zubulake cases.⁹⁵ The United States District Court for the Southern District of New York rendered five separate opinions in Zubulake v. UBS Warburg LLC addressing some of the most challenging issues surrounding e-discovery: discoverable information, the costs of e-discovery, and the duty to preserve ESI.⁹⁶ These opinions helped influence e-discovery law and were integrated into the 2006 Federal e-discovery Amendments.⁹⁷

Because states like New York and Texas have had success deviating from the Federal Rules and applying their own set of e-discovery rules or case law precedent, Massachusetts courts will have similar success following an electronic discovery model more workable than the FRCP.⁹⁸

III. The Massachusetts E-discovery Rules Should Be Amended to Include a Social Media Component

An amendment addressing social media should be made to the newly-enacted Massachusetts e-discovery rules because of the difficulties associated with the admissibility of social media evidence.⁹⁹ Proponents have advocated for new rules specifically addressing social media because the current discovery structure is not suited to address these issues.¹⁰⁰ From 2010 to 2013, more than 900 cases implicating social media discovery were published.¹⁰¹ “The inconsistency among [these] opinions is the only consistency.”¹⁰² The reason for such inconsistency may be because seeking this information from social networking websites is extremely difficult because it must usually go through third parties before being accessed.¹⁰³ Additionally, courts must consider several factors before social networking information will be admitted: (1) is the information “material and necessary” to the case; (2) are there other ways the information can be obtained; and (3) whether the party who wants the information will be at a disadvantage in the proceedings without it.¹⁰⁴ The issues surrounding the admissibility of this electronic evidence must be governed by their own framework in addition to the existing e-discovery rules.¹⁰⁵

A. An Illustration of Inconsistency: A Cry for a Concrete Framework

While many courts faced with daunting social media e-discovery requests engage in a systematic process, certain courts have acted with too much discretion and have reached questionable results.¹⁰⁶ In two specific cases, courts allowed unrestricted, direct access to a user’s social media accounts which allowed the other party to use irrelevant information.¹⁰⁷

Romano v. Steelcase Inc. involved a dispute about personal injuries and loss of enjoyment of life; the defendant wanted to admit photos depicting the plaintiff smiling.¹⁰⁸ The court concluded that the requesting party could access the plaintiff’s Facebook account because one could infer from the narrow content on the plaintiff’s public page that other relevant information would be found in the page’s private section.¹⁰⁹ The court further ordered that the requesting party could have access to current as well as deleted posts.¹¹⁰

In Largent v. Reed, an auto accident case, the plaintiff alleged serious and permanent injuries.¹¹¹ The defendant discovered the plaintiff’s Facebook account and certain posts that repudiated her injury claims.¹¹² The court granted the defendant’s Motion to Compel the plaintiff’s username and password because the defendant showed a “good faith belief” that the evidence would be relevant.¹¹³ The unrestricted access to social media content displayed in these cases thwarts the normal discovery process.¹¹⁴ “Granting such sweeping access represents a break from traditional electronic discovery orders.”¹¹⁵ Allowing such unfettered access to this information creates a slippery slope—without a framework for courts to follow, it seems that any social media evidence will be admissible.¹¹⁶

B. Proposed Framework for an Amendment Addressing Social Media

Massachusetts should adopt a framework regarding social media evidence modeled off case law.¹¹⁷ A recent Massachusetts Appeals Court decision stated, “More explicit instructions about the use of social media and the Internet may [] be required.”¹¹⁸ Simply because information exists on a social networking site does not mean that a party should have unrestricted access to that information.¹¹⁹ A court is most likely to accept requests for social media content if they are specific, “narrowly tailored,” and demonstrate a factual need for the evidence before it is turned over.¹²⁰

In order to achieve efficiency in the e-discovery process, a “discovery protocol” must be established.¹²¹ The first step must relate to relevancy: a request for electronic information from a social media site must be particularized and target specific information,¹²² overbroad requests should never be permissible.¹²³ Courts should appoint “discovery referees” as the first level of review.¹²⁴ This referee’s job would be to assess all the information and determine what is relevant to the dispute.¹²⁵ This process should take place concurrently with all other discovery so the referee is able to determine exactly what is relevant.¹²⁶

The referee should be an attorney in order to ensure that he or she has legal experience determining what information is relevant.¹²⁷ The standard should resemble the reasonable person standard, with experience as an attorney, who can determine that the evidence discovered would aid in figuring out “the truth or falsity of any fact that is of consequence to the lawsuit.”¹²⁸ Therefore, evidence will overcome the relevancy hurdle if a “logical nexus” exists.¹²⁹ Next, the scope of discovery must be limited: a requesting party must give the referee specific details of what he or she reasonably expects to find in the other person’s social media accounts.¹³⁰ A party should not be obligated to answer overbroad discovery demands.¹³¹ At the conclusion of determining what evidence is relevant, the referee will deliver the information to the court.¹³²

The second level of review will take place in the courts.¹³³ To ensure that only the most accurate and relevant information will be turned over to the requesting party’s attorney, after the referee examines the social media evidence the court will conduct an in camera review to make sure privileged information is not released.¹³⁴ The court will then deliver the relevant information to the requesting party’s attorney; the requesting party will never be permitted to access the usernames and passwords to the social networking accounts.¹³⁵ Refraining from turning over usernames and passwords will avoid privacy issues, phishing scams, identity theft, and fraud.¹³⁶ In addition, courts must incorporate authentication into the process of determining whether social media evidence should be admitted.¹³⁷

IV. The Massachusetts E-discovery Rules Should Be Amended to Include an Authentication Component

An authentication amendment should be made to the newly-enacted Massachusetts e-discovery rules because of the complications surrounding authenticating ESI.¹³⁸ Certain courts are inclined to admit evidence and leave the jury to decide questions of admissibility and weight of the evidence.¹³⁹ This is not a proper solution because authentication of evidence should rest in the hands of those with more experience.¹⁴⁰ As one judge stated, “there may be multiple ways to authenticate [electronic evidence], and careful attention to all the possibilities may reveal a method that significantly eases the burden of authentication.”¹⁴¹

A. Revealing the Importance of Authentication

Courts should not be permitted to admit evidence that is not authenticated.¹⁴² Unauthenticated electronic evidence is prejudicial because authentication “is necessary to establish that a document is what it purports to be.”¹⁴³ Concerns associated with electronic evidence that lead to the skepticism of reliability include the potential to “create, alter, and manipulate electronic evidence.”¹⁴⁴

B. A Proposed Framework for Authentication of ESI

Federal Rule of Evidence 901, which sets the standard for authenticating evidence, does not provide courts and lawyers with a process to show that the evidence is truly what the proponent claims it to be.¹⁴⁵ Authentication is typically assessed through a reasonable juror standard.¹⁴⁶ Griffin v. State, one of the only cases that has discussed authentication of electronic evidence and social media, adopted a more stringent standard than the reasonable juror standard.¹⁴⁷ The Griffin majority did not adopt the standard for authentication utilized by most federal circuit courts “that a document is properly authenticated if a reasonable juror could find in favor of authenticity.”¹⁴⁸ Instead, the court outlined three alternatives: (1) asking the defendant whether he or she created the page and posted the material in question; (2) searching the defendant’s computer; or (3) obtaining the information directly from the social networking site where the information was posted.¹⁴⁹

Courts should adopt a more stringent standard than the reasonable juror standard.¹⁵⁰ Using case law to further develop the reasonable juror standard for authentication of evidence provides a structured way to address authenticating electronic information.¹⁵¹ Currently, authentication is evaluated is through testimony or personal knowledge and analyzing characteristics of the content.¹⁵² Commonwealth v. Purdy and Commonwealth v. Amaral are instructive.¹⁵³ Commonwealth v. Purdy suggests that “confirming circumstances,” such as posts originating from the specified persons account or their acknowledgement to using the account would be sufficient to authenticate the evidence.¹⁵⁴ The court in Commonwealth v. Amaral suggested that while the identity of an individual is not enough to link them to and authenticate ESI, other factors such as the person’s picture, DMV records, phone number, and appearance at the time and place in question can corroborate the evidence.¹⁵⁵

The authentication process should be judged by a more rigorous standard than the reasonable juror standard.¹⁵⁶ This standard should encompass evaluating the electronic information by testimony of someone with personal knowledge; analyzing the characteristics of the content; conducting an examination of the person who allegedly posted the material in question; obtaining permission to search the person’s computer; and, although most problematic, attempting to have the social network in question provide information about the electronic material posted.¹⁵⁷

CONCLUSION

E-discovery is a relatively novel area of the law and specific guidance is necessary. Massachusetts’ newly enacted e-discovery rules are a great starting point for practitioners and judges. The Massachusetts rules, while slightly modeled off the 2006 Amendments to the FRCP addressing e-discovery, propose new methods and solutions to dealing with the intricacies of e-discovery. The Massachusetts rules are more clear and expansive, providing better guidance than the FRCP.

Although the Massachusetts rules are more articulate than the Federal Rules, specific amendments addressing social media and authentication should be made to further increase clarity in the implementation of the rules. The current Massachusetts rules are not suited to address the issues surrounding social media and authentication as demonstrated by the inconsistency and confusion among courts regarding the treatment of this evidence.

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¹ Sharon D. Nelson, Balling and Getting High: Evidence on Myspace, RIDE THE LIGHTING: ELEC. EVIDENCE & INFO. SECURITY BLOG (Feb. 19, 2008, 4:40 PM), http://ridethelightning.senseient.com/2008/02/balling-and-get.html.
² See What Americans Do Online Social Media and Games Dominate Activity, NIELSON (Aug. 2, 2010), http://www.nielsen.com/us/en/newswire/2010/what-americans-do-online-social-media-and-games-dominate-activity.html; Karen L. Stevenson, What’s on Your Witness’s MySpace Page?, A.B.A. (Mar. 2008), https://apps.americanbar.org/litigation/litigationnews/2008/march/0308_article_myspace.html.
³ See Loryn P. Riggiola & Grace A. Brown, E-Discovery Takes A Turn—Charting The Course To Discovery From Social Networks, METROPOLITAN CORP. COUNS. (Jan. 31, 2011, 1:00 AM), http://www.metrocorpcounsel.com/articles/13461/e-discovery-takes-turn-charting-course-discovery-social-networks; K & L Gates, Current Listing of States that Have Enacted E-Discovery Rules, ELECTRONIC DISCOVERY L., http://www.ediscoverylaw.com/promo/state-district-court-rules/ (last visited Apr. 22, 2015).
⁴ See infra Part I.A.1.
⁵ BARBARA J. ROTHSTEIN ET AL., FED. JUDICIAL CTR., MANAGING DISCOVERY OF ELECTRONIC INFORMATION: A POCKET GUIDE FOR JUDGES 1 (2d ed. 2012), available at http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt2d_eb.pdf/$file/eldscpkt2d_eb.pdf.
⁶ Adam Cohen, Social Media and eDiscovery: Emerging Issues, 32 PACE L. REV. 289, 292 (2012).
⁷ See infra Part I.B.
⁸ See infra Parts III, IV.
⁹ SHIRA A. SCHEINDLIN & DANIEL J. CAPRA, THE SEDONA CONFERENCE, ELECTRONIC DISCOVERY AND DIGITAL EVIDENCE CASES AND MATERIALS 40 (2d ed. 2012).
¹⁰ Id.; MASSACHUSETTS CONTINUING LEGAL EDUCATION, USE AND ABUSE OF DISCOVERY 39 (1984).
¹¹ FED. R. CIV. P. 26(b)(1); JAMES L. UNDERWOOD, A GUIDE TO FEDERAL DISCOVERY RULES 4 (2d ed. 1985).
¹² FED. R. CIV. P. 26(b)(3)(A).
¹³ PAUL W. GRIMM ET AL., DISCOVERY PROBLEMS AND THEIR SOLUTIONS 61 (3d ed. 2013).
¹⁴ FED. R. CIV. P. 26(b)(2)(B); GRIMM ET AL., supra note 13.
¹⁵ FED. R. CIV. P. 34(b).
¹⁶ Patrick Marshall, Note, What You Say on Facebook May Be Used Against You in a Court of Family Law: Analysis of this New Form of Electronic Evidence and Why It Should Be on Every Matrimonial Attorney’s Radar, 63 ALA. L. REV. 1115, 1120 (2012).
¹⁷ ROTHSTEIN ET AL., supra note 5, at 2.
¹⁸ See FED. R. CIV. P. 26(a)(1)(A)(ii) (stating that a party to litigation must disclose all electronically stored information pertinent to their claim or defense).
¹⁹ Pearl Zuchlewski, The Uses and Abuses of Electronic Discovery, 57 WAYNE L. REV. 1391, 1392 (2011).
²⁰ See generally Gaetano Ferro et al., Electronically Stored Information: What Matrimonial Lawyers and Computer Forensics Need to Know, 23 J. AM. ACAD. MATRIM. LAW. 1, 24–29 (2010).
²¹ Daniel Renwick Hodgman, A Port in the Storm?: The Problematic and Shallow Safe Harbor for Electronic Discovery, 101 NW. U. L. REV. 259, 275 (2007). The Sedona Conference is a nonprofit working group and a “research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights.” About the Sedona Conference, SEDONA CONF., https://thesedonaconference.org/ (last visited Apr. 22, 2015).
²² ROTHSTEIN ET AL., supra note 5, at 3.
²³ See generally Thomas Y. Allman, Conducting E-Discovery After the Amendments: The Second Wave, 10 SEDONA CONF. J. 215, 218, 220–21 (2009).
²⁴ Id. at 218.
²⁵ David Narkiewicz, E-Discovery: The Essentials, 30 PA. LAW., Nov.–Dec. 2008, at 18, 24.
²⁶ See Steven W. Teppler, Spoliation of Digital Evidence: A Changing Approach to Challenges and Sanctions, 2008 A.L.I.-A.B.A. VIDEO L. REV. 67, 69, available at http://files.ali-cle.org/thumbs/datastorage/skoobesruoc/pdf/VCP0807_chapter_05_thumb.pdf; Matt Delmero, Spoliation: Analysis, HARV. UNIV., http://cyber.law.harvard.edu/digitaldiscovery/library/spoliation/spoliationanalysis.html (last visited Apr. 22, 2015).
²⁷ See Allman, supra note 23, at 222–24.
²⁸ See Sarah A. L. Phillips, Discoverability of Electronic Data Under the Proposed Amendments to the Federal Rules of Civil Procedure: How Effective Are Proposed Protections For “Not Reasonably Accessible” Data, 83 N.C. L. REV. 984, 985 (2005). “[E]-discovery raises different issues than traditional discovery and . . . these issues require special rules of procedure.” Id. at 987; see also E-Discovery Services & Strategy, PERKINSCOIE, http://www.perkinscoie.com/ess/ (last visited Apr. 22, 2015).
²⁹ INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., NAVIGATING THE HAZARDS OF E- DISCOVERY: A MANUAL FOR JUDGES IN STATE COURTS ACROSS THE NATION 8 (2d. ed. 2012), available at http://iaals.du.edu/images/wygwam/documents/publications/Navigating_eDiscovery_2nd_Edition.pdf.
³⁰ Id. at 10.
³¹ Eric B. Strongin, When Paper Doesn’t Cut It: Understanding E-Discovery Law and Putting In Place An Effective E-Discovery Strategy, PRATT’S PRIVACY & DATA SECURITY L. J., Feb. 2009, available at Westlaw.
³² JUDITH SEARS, NAT’L COURT REPORTERS ASS’N, E-DISCOVERY: A TECH TSUNAMI ROLLS IN 4 (Apr. 2006) (internal quotations omitted), available at http://www.krollontrack.com/publications/ediscoverybackgroundpaper.pdf.
³³ See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 YALE L.J. POCKET PART 167, 167 (2006), available at http://prawfsblawg.blogs.com/files/82.pdf.
³⁴ See id.
³⁵ See Thomas Y. Allman & Ashish S. Prasad, The Forgotten Cousin: State Rulemaking and Electronic Discovery, in GARY A. ADLER ET AL., ELECTRONIC DISCOVERY AND RETENTION GUIDANCE FOR CORPORATE COUNSEL 327 (2007); John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. L.J. 354, 355 (2003) (“Not only has the trend toward state conformity to the federal rules stopped accelerating–it has substantially reversed itself.”).
³⁶ State Law Rules, EDISCOVERY RESOURCE DATABASE, http://ediscoveryresourcedatabase.com/e-discovery-rules/state-law-rules/ (last visited Apr. 22, 2014) (including: AK, AZ, AR, CA, CT, DE, FL, IA, ID, IN, KS, LA, MA, ME, MD, MI, MN, MS, MT, NE, NH, NJ, NM, NC, ND, OH, OK, PA, TN, TX, UT, VT, VA, WI, and WY); Thomas Y. Allman, E-Discovery in Federal and State Courts After the 2006 Federal Amendments, KROLLONTRACK 48–61 (Feb. 9, 2012), http://www.krollontrack.com/publications/2012%20fed%20state%20ediscovery%20rules.pdf.
³⁷ Stephany Collamore, Amendments to Mass. Rules of Civil Procedure Address E-Discovery, BOS. BAR J. (Jan. 7, 2014), http://bostonbarjournal.com/2014/01/07/amendments-to-mass-rules-of-civil-procedure-address-e-discovery/; New Electronic Discovery Rules in Massachusetts, MASS. LAW UPDATES (Sept. 27, 2013), http://masslawlib.blogspot.com/2013/09/new-electronic-discovery-rules-in.html [hereinafter New Rules].
³⁸ David E. Frank, Bar Said to Be Unprepared for New E-Discovery Rules, MASS. ASS’N HISPANIC ATT’YS (Oct. 9, 2013, 9:52 AM), http://mahaweb.org/news/bar-said-to-be-unprepared-for-new-e-discovery-rules/.
³⁹ New Rules, supra note 37.
⁴⁰ MASS. R. CIV. P. 26(b) Reporter’s Notes 2014.
⁴¹ Compare MASS. R. CIV. P. 26(b)(5)(B), with FED. R. EVID. 502(b).
⁴² See MASS. R. CIV. P. 26(b)(5)(B).
⁴³ Jan L. Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law, 68 U. MIAMI L. REV. 445, 454 (2014) (citing JOHN G. BROWNING, THE LAWYER’S GUIDE TO SOCIAL NETWORKING: UNDERSTANDING SOCIAL MEDIA’S IMPACT ON THE LAW 17–18 (Eddie Fourner ed., 2012)).
⁴⁴ John M. Miller, Is Myspace Really Myspace? Examining the Discoverability of the Contents of Social Media Accounts, 30 NO. 2 TRIAL ADVOC. Q. 28, 29 (2011) (providing an overview of social networking websites); Top 15 Most Popular Social Networking Sites, EBIZ MBA (Feb. 2015), http://www.ebizmba.com/articles/social-networking-websites.
⁴⁵ See Cohen, supra note 6, at 289.
⁴⁶ John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites, 14 SMU SCI. & TECH. L. REV. 465, 465–66 (2011).
⁴⁷ Jane Susskind, 7 Social Media Stats of 2013 that Will Surprise You, IVN (Oct. 2, 2012), http://ivn.us/2013/10/02/7-social-media-stats-2013-will-surprise/.
⁴⁸ Social Networking Eats up 3+ Hours Per Day for the Average American User, MARKETING CHARTS (Jan. 9, 2013), http://www.marketingcharts.com/interactive/social-networking-eats-up-3-hours-per-day-for-the-average-american-user-26049/.
⁴⁹ Browning, supra note 46, at 466.
⁵⁰ Cohen, supra note 6, at 293.
⁵¹ Lawrence Morales II, Social Media Evidence: “What You Post or Tweet Can and Will Be Used Against You in a Court of Law,” 60 ADVOC. (TEX.) 32, 32 (2012).
⁵² SAMUELSON LAW, TECH. & PUB. POLICY CLINIC, BERKELEY LAW, SOCIAL NETWORKS: FRIENDS OR FOES? CONFRONTING ONLINE LEGAL AND ETHICAL ISSUES IN THE AGE OF SOCIAL NETWORKING 1, available at http://www.law.berkeley.edu/files/ConferenceBackground.pdf. For example, the American Academy of Matrimonial Lawyers conducted a study in 2010 that revealed that 81% of attorneys reported discovering and using evidence from social networking cases, with Facebook being the primary source of comprising information. Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers, AM. ACAD. MATRIM. LAW. (Feb. 10, 2010), http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey-.
⁵³ See SEAN P. O’DONNELL, COZEN O’CONNOR, THE USE OF INFORMATION POSTED ON FACEBOOK AND MYSPACE IN LITIGATION 2–3 (2009), available at http://www.cozen.com/ cozendocs/outgoing/alerts/2009/subro101409.pdf.
⁵⁴ See Christopher Brett Jaeger & Gregory D. Smith, Computer and Electronic Snooping: Opportunities to Violate State and Federal Law, 34 AM. J. TRIAL ADVOC. 473, 484–515 (2011); Amanda Showalter, Comment, “What’s Yours is Mine”: Inadvertent Disclosure of Electronically Stored Information in Divorce Litigation, 23 J. AM. ACAD. MATRIM. LAW. 177, 177 (2010); infra notes 55–58 and accompanying text.
⁵⁵ Borden v. Borden, 130 So. 3d 1168, 1177 (Miss. Ct. App. 2014), rev’d, 2014 WL 5036036 (Miss. 2014).
⁵⁶ Id.
⁵⁷ Richards v. Hertz Corp., 953 N.Y.S.2d 654, 655–57 (2012).
⁵⁸ Id. at 656.
⁵⁹ Howell v. Buckeye Ranch, Inc., No. 2:11–cv–1014, 2012 WL 5265170, at 1 (S.D. Ohio Oct. 1, 2012); John G. Browning, With “Friends” Like These, Who Needs Enemies? Passwords, Privacy, and the Discovery of Social Media Content, 36 AM. J. TRIAL ADVOC. 505, 527 (2013).
⁶⁰ Howell, 2012 WL 5265170, at 1.
⁶¹ See Browning, supra note 46, at 526–27.
⁶² See FED. R. EVID. 901; see also Elizabeth Leman, Preserving & Authenticating Electronically Stored Information (ESI), LEGAL SERVICES NAT’L TECH. ASSISTANCE PROJECT, http://lsntap.org/ blogs/preserving-authenticating-electronically-stored-information-esi (last visited Apr. 22, 2015).
⁶³ Keiko L. Sugisaka & David F. Herr, Admissibility of E-Evidence in Minnesota: New Problems or Evidence as Usual?, 35 WM. MITCHELL L. REV. 1453, 1464 (2009).
⁶⁴ FED. R. EVID. 901; Breanne M. Democko, Comment, Social Media and the Rules on Authentication, 43 U. TOL. L. REV. 367, 381 (2012); see also GEORGE FISHER, EVIDENCE: FEDERAL RULES OF EVIDENCE 2014–2015 STATUTORY AND CASE SUPPLEMENT 289 (3d ed. 2013).
⁶⁵ See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007); Richard W. Fox, The Return of “Voodoo Information”: A Call to Resist a Heightened Authentication Standard for Evidence Derived from Social Networking Websites, 62 CATH. U. L. REV. 197, 202 (2012).
⁶⁶ Heather L. Griffith, Understanding & Authenticating Evidence from Social Networking Sites, 7 WASH. J. L. TECH. & ARTS 209, 215 (2012).
⁶⁷ John D. Martin, Overcoming Authentication Hurdles to the Admission of Electronic Evidence, PROOF, Winter 2009, at 13, 13, available at http://www.nelsonmullins.com/DocumentDepot/Proof_WI09_pages.pdf.
⁶⁸ See Sugisaka & Herr, supra note 63, at 1459; see, e.g., Griffin v. State, 19 A.3d 415, 418, 424 (Md. 2011) (concluding that print-outs of the witness’s Myspace page were not properly authenticated because it could not be established that the witness created the profile).
⁶⁹ See Democko, supra note 64, at 382. “A court may find a profile page authentic if the content of the page or the posting is so distinctive that it only could have been created by one particular individual.” Griffith, supra note 66, at 218.
⁷⁰ See Brent R. Austin, ESI, e-Discovery, and Ethics: Managing Pre-Trial Litigation in the Age of Electronically Stored Information, in ETHICS IN E-DISCOVERY: LEADING LAWYERS ON NAVIGATING RULES AND REGULATIONS AND EFFECTIVELY HANDLING PRIVACY ISSUES IN THE E-DISCOVERY PROCESS 7, 19 (2012).
⁷¹ See Press Release, Supreme Judicial Court, SJC Approves Amendments to Rules of Civil Procedure Addressing Discovery of Electronically Stored Information (Sept. 27, 2013), available at http://www.courtrulesupdates.com/massachusetts-rules-of-civil-procedure-2/; NIXON PEABODY, 2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE 24–31 (2013), available at http://bostonediscovery.com/wp-content/uploads/2012/09/Jonathan-Sablone-MA-Rules-for-Ediscovery.pdf [hereinafter 2013 E-DISCOVERY AMENDMENTS].
⁷² Cf. Massachusetts Rules for Ediscovery: A Two-Page Guide, EVIDOX, http://evidox.com/wp-content/uploads/2014/01/MA-Rules-for-Ediscovery-Guide.pdf (last visited Apr. 22, 2015) [hereinafter Massachusetts Rules for Ediscovery] (describing Massachusetts’ new amendments).
⁷³ See generally JONATHAN SABLONE, LEXISNEXIS PRACTICE GUIDE: MASSACHUSETTS E- DISCOVERY AND EVIDENCE § 4.06, (Matthew Bender & Co. ed., LexisNexis 2014) (comparing the Massachusetts model and the FRCP).
⁷⁴ See FED. R. CIV. P. 16.
⁷⁵ Massachusetts Rules for Ediscovery, supra note 72.
⁷⁶ See FED. R. CIV. P. 26; SABLONE, supra note 73, at § 4.06.
⁷⁷ See FED. R. CIV. P. 26(f); SABLONE, supra note 73, at § 4.04(1)(e).
⁷⁸ See 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 8.
⁷⁹ MASS. R. CIV. P. 26(f)(2)(C); see also 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 11.
⁸⁰ FED. R. CIV. P. 45.
⁸¹ 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 28.
⁸² See Frank, supra note 38.
⁸³ Id.
⁸⁴ Boston Ediscovery Summit, Judge Rutberg & Attorney Fox: “The Mass. Rules of Civil Procedure”, YOUTUBE (Jan. 22, 2014), http://youtu.be/cI8lbCMLB20?t=5m41s.
⁸⁵ David Glod, Newly Amended Mass. Rules of Civil Procedure Focus on Electronic Discovery, RICH MAY (Nov. 13, 2013), http://www.richmaylaw.com/?t=40&an=25937&format=xml.
⁸⁶ See Anne Shea Gaza & Jason J. Rawnsley, Local Practices for Electronic Discovery, THE FED. LAW., Feb. 2011, at 32, 32, available at http://www.rlf.com/files/local-ediscovery_0211.pdf (“[T]he 2006 Amendments [to the Federal Rules] were neither the starting point nor the end point for the handling of ESI.”).
⁸⁷ Jason Fliegel & Rochelle Outlaw, Slow to Act? State Rulemaking and Electronic Discovery, FOR THE DEF., Jan. 2008, at 47, 47, available at http://www.mayerbrown.com/files/Publication/1ebaddc7-cc40-445f-b162-69cf44ae9185/Presentation/PublicationAttachment/70bb4e17-df1c-4229-bc63-38f3eb961bc9/ARTICLE_ELECTRONICDISCOVERY_2008.PDF.
⁸⁸ See generally Timothy J. Chorvat & Laura E. Pelanek, Electronically Stored Information in Litigation, 67 BUS. LAW. 285, 287–89 (2011); Fliegel & Outlaw, supra note 87.
⁸⁹ See David Canfield, An Overview of State E-Discovery Rules, INSIDE COUNS. (Mar. 15, 2012), http://www.insidecounsel.com/2012/03/15/an-overview-of-state-e-discovery-rules?page=2 (“[T]here is an innate concern that strict, homogenous adoption [of e-discovery rules] could impede vital e-discovery evolution. To date, several states have transcended the 2006 Amendments with dynamic e-discovery regimes that could potentially serve as examples for other states and perhaps for future amendments to the Federal Rules.”).
⁹⁰ TEX. R. CIV. P. 196.4; Allman, supra note 36, at 3, 6, 59.
⁹¹ TEX. R. CIV. P. 196.4.
⁹² State Law Rules, supra note 36.
⁹³ See supra notes 71–81, 87–92 and accompanying text.
⁹⁴ See DAVID H. TENNANT ET AL., N.Y. STATE BAR ASS’N, BEST PRACTICES IN E-DISCOVERY IN NEW YORK STATE AND FEDERAL COURTS 1 (July 2011), http://www.ediscoverylaw.com/files/2014/01/e-discoveryFinalGuidelines1.pdf.
⁹⁵ State Law Rules, supra note 36.
⁹⁶ Andrew C. Payne, Note, Twitigation: Old Rules in a New World, 49 WASHBURN L.J. 841, 852 (2010).
⁹⁷ SABLONE, supra note 73, at § 4.04[3][a].
⁹⁸ See supra notes 90–97 and accompanying text.
⁹⁹ See supra Part I.C.
¹⁰⁰ Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L. REV. 228, 229 (2011) (“This new mode of human interaction does not fit neatly into any discovery statutes, case law precedents, or ethics codes. Indeed, the administration of justice is struggling to adapt to this emergent reality with little guidance.”).
¹⁰¹ JOSEPH J. BAMBARA & NATALIE S. FEHER, N.Y. CNTY. LAWYERS’ ASS’N, EDISCOVERY: A COMPREHENSIVE VIEW AND SOCIAL MEDIA IMPACT 43 (June 4, 2013), available at http://www.nycla.org/PDF/eDiscovery_CLE_JUNE4_2013_Final.pdf.
¹⁰² Id. (emphasis removed).
¹⁰³ Meredith L. Williams, eDiscovery & Social Media, NAT’L L. F. (Nov. 29, 2010), http://nationallawforum.com/2010/11/29/ediscovery-social-media/.
¹⁰⁴ BAMBARA & FEHER, supra note 101, at 34.
¹⁰⁵ See Miller, supra note 44, at 28.
¹⁰⁶ See Steven S. Gensler, Special Rules for Social Media Discovery, 65 ARK. L. REV. 7, 17 (2012).
¹⁰⁷ See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (2010); Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. C.P. Nov. 8, 2011); Gensler, supra note 106, at 17.
¹⁰⁸ 907 N.Y.S. 2d at 654.
¹⁰⁹ Id. at 655.
¹¹⁰ See generally David D. Siegel, The Negative Side Of Homey Websites Like Facebook and Mypsace They Can Furnish Unintended Disclosure Opportunities For Adversaries In Litigation, 225 SIEGEL’S PRAC. REV. 1 (2010); Williams, supra note 103.
¹¹¹ No. 2009-1823, 2011 WL 5632688. (Pa. C.P. Nov. 8, 2011).
¹¹² Id.
¹¹³ Id.
¹¹⁴ See Timothy C. Quinn, The Discoverability Of Private Social Media Content: Are Pennsylvania Trial Courts Going Too Far by Granting Litigants Unfettered Access to Their Opponents’ Social Media Accounts?, 51 DUQ. L. REV. 787, 806 (2013).
¹¹⁵ Mallory Allen & Aaron Orheim, Get Outta My Face[book]: The Discoverability Of Social Networking Data and the Passwords Needed to Access Them, 8 WASH. J.L. TECH. & ARTS 137, 150 (2012).
¹¹⁶ See Quinn, supra note 114, at 822–23.
¹¹⁷ See infra notes 118–32 and accompanying text.
¹¹⁸ Commonwealth v. Werner, 967 N.E.2d 159, 168 (Mass. App. Ct. 2012).
¹¹⁹ BAMBARA & FEHER, supra note 101, at 37.
¹²⁰ See Order at 3, Davids v. Novartis Pharm. Corp., No. CV06-0431 (E.D.N.Y. Feb. 24, 2012) (order denying compelling disclosure); BAMBARA & FEHER, supra note 101, at 39.
¹²¹ See, e.g., Schreiber v. Schreiber, 904 N.Y.S.2d 886, 893–94 (2010).
¹²² See Crazytown Furniture, Inc. v. Brooklyn Union Gas Co., 541 N.Y.S.2d 30, 32 (1989) (denying request for access to social media websites because the request was lacking a “factual predicate with respect to the relevancy of the evidence”); see, e.g., Schreiber, 904 N.Y.S.2d at 894 (pertaining to particularized search queries of a hard disk drive).
¹²³ See Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (2012); see, e.g., Greenfield v. Bd. of Assessment Review for Town of Babylon, 965 N.Y.S.2d 555, 557 (2013); Winchell v. Lopiccolo, 954 N.Y.S.2d 421, 423–24 (2012).
¹²⁴ See, e.g., Schreiber, 904 N.Y.S.2d at 894.
¹²⁵ See id.
¹²⁶ See Anthony Diana, Kim Leffert & Richard Nowak, Electronic Discovery & Information Governance: Tip of the Month, MAYER BROWN (Jan. 2014), http://reaction.mayerbrown.com/rs/vm.ashx?ct=24F76718D0E20AEDC1D180AFD32F991ADEBE7BB3D38714DD4CF371647BF8D9 0DDD78034.
¹²⁷ See Schreiber, 904 N.Y.S.2d at 894.
¹²⁸ Hernandez v. State, 327 S.W.3d 200, 206 (Tex. App. 2010).
¹²⁹ Reed v. State, 59 S.W.3d 278, 281 (Tex. App. 2001).
¹³⁰ See Schreiber, 904 N.Y.S.2d at 893 (denying a request because it was overbroad, seeking general rather than particularized access to data).
¹³¹ Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (2012).
¹³² See Schreiber, 904 N.Y.S.2d at 895; Gibbons P.C., Magistrate Judge Orders Production of Social Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns, GIBBONS E-DISCOVERY L. ALERT (Feb. 7, 2013), http://www.ediscoverylawalert.com/2013/02/articles/legal-decisions-court-rules/magistrate-judge-orders-production-of-social-media-discovery-but-fashions-novel-protocol-designed-to-protect-privacy-concerns/.
¹³³ See Richards v. Hertz Corp., 953 N.Y.S.2d 654, 656 (2012).
¹³⁴ E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11–CV–02560–MSK– MEH, 2012 WL 5430974, at 2 (D. Colo. Nov. 7, 2012); Richards, 953 N.Y.S.2d at 656; Gibbons P.C., supra note 132.
¹³⁵ Compare Howell v. Buckeye Ranch, Inc., No. 2:11–CV–1014, 2012 WL 5265170, at 1 (S.D. Ohio Oct. 1, 2012) (finding that it was not appropriate to allow defendant access to plaintiff’s user name and passwords for social media accounts), with Largent v. Reed, No. 2009-1823, 2011 WL 5632688, (Pa. C.P. Nov. 8, 2011) (concluding that it was proper to give requesting party access to user name and passwords of the plaintiff’s social media accounts).
¹³⁶ See Sara E. Stratton, Note, Passwords Please: Rethinking the Constitutional Right to Informational Privacy in the Context of Social Media, 41 HASTINGS CONST. L.Q. 649, 664 (2014).
¹³⁷ See infra Part IV.
¹³⁸ See supra Part I.D.
¹³⁹ Justin P. Murphy & Matthew A.S. Esworthy, The ESI Tsunami: A Comprehensive Discussion About Electronically Stored Information in Government Investigations and Criminal Cases, CRIMINAL JUSTICE, Spring 2012, at 31, available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/sp12_esi_tsunami.authcheckdam.pdf (material is on fifth page of PDF document).
¹⁴⁰ See Nyankojo v. N. Star Capital Acquisition, 679 S.E.2d 57, 59 (Ga. Ct. App. 2009) (discussing what courts consider when deciding if sufficient evidence of authentication exists).
¹⁴¹ Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored Information: It’s Still the Same Old Story, 23 J. AM. ACAD. MATRIM. LAW. 45, 56 (2010) (quoting Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 549 (D. Md. 2007)).
¹⁴² Griffin v. State, 19 A.3d 415, 418 n.6 (Md. 2011).
¹⁴³ See Defendant’s Motion in Limine to Exclude All Electronic Evidence for Which Authenticity Has Not Been Established, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 09-cr-10017-GAO), available at http://freetarek.files.wordpress.com/2011/11/ motioncacheimages.pdf.
¹⁴⁴ Id.; see, e.g., Griffin, 19 A.3d at 422 (citing United States v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009)) (describing a situation where a mother created a fictitious MySpace profile and used the profile in a manner that caused a high school female student to commit suicide).
¹⁴⁵ Fox, supra note 65, at 202.
¹⁴⁶ Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007); Deborah R. Eltgroth, Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence, 78 FORDHAM L. REV. 181, 187 (2009).
¹⁴⁷ See 19 A.3d 415, 422, 424 (Md. 2011); Fox, supra note 65, at 216.
¹⁴⁸ Fox, supra note 65, at 216 (quoting Griffin, 19 A.3d at 429).
¹⁴⁹ Griffin, 19 A.3d at 427–28; see also Fox, supra note 65, at 216–217 (discussing the negative impact of the three alternative authentication methods).
¹⁵⁰ See Griffin, 19 A.3d at 424. But see Fox, supra note 65, at 216–21.
¹⁵¹ See supra notes 146–48 and accompanying text.
¹⁵² See supra note 69 and accompanying text.
¹⁵³ See Commonwealth v. Purdy, 945 N.E.2d 372, 379–82 (Mass. 2011); Commonwealth v. Amaral, 941 N.E.2d 1143, 1146–47 (Mass. App. Ct. 2011); Scott Milligan, Authentication of Social Media Evidence [Guest Post], WASSOM.COM (Aug. 9, 2013), http://www.wassom.com/authentication-of-social-media-evidence-guest-post.html.
¹⁵⁴ 945 N.E.2d at 381.
¹⁵⁵ Amaral, 941 N.E.2d at 1146–47.
¹⁵⁶ See supra notes 146–49 and accompanying text.
¹⁵⁷ See supra notes 144–54 and accompanying text.