Recognizing Reality with Preserving Social Media ESI


Recognizing Reality with Preserving Social Media ESI

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By Joshua Gilliland, Esq., “Bow Tie Law”

In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.

The Plaintiff first argued that the Defendant failed to preserve his Facebook pages in PDF format, because the Defendant took down the pages after the Plaintiff sent a take down notice.  Katiroll Co., at *9.

The Court held sanctioning the Defendant for following a take down request would be unjust, even if the Plaintiff’s take down notice was not legally proper.  Katiroll Co., at *9, fn 1.

The Plaintiff also argued that the Defendant changing his Facebook profile photo with infringing trade dress led to the loss of discoverable evidence.  The Court very reluctantly clicked “Like” on this argument, but did not impose any sanctions.  Katiroll Co., at *9-11.

The parties agreed that when a user changes a Facebook profile photo, the user changes the photo associated with each status message or post they have done in the past.   Katiroll Co., at *9.

The Defendants argued that sanctions were not warranted, because the Facebook profile was a public website, which the Plaintiffs could have preserved themselves.  Katiroll Co., at *10.

The Court noted that case law has held that public websites are still within the control of those who own the websites.  Katiroll Co., at *10.

The Court described the Defendant’s position as “an attempt to `pass the buck’ to Plaintiff to print websites that Defendants are obliged to produce.”  Katiroll Co., at *10.

The Court found that the Defendants were in “control” of the Facebook profile, stating:

“Given that Defendants have a discovery obligation to produce them and that only Defendants knew when the website would be changed, it is more appropriate for Defendants to have that burden.”

Katiroll Co., at *10.

However, the Court acknowledged that changing a Facebook profile photo is a “common occurrence” and users often change their profile photos weekly.  Katiroll Co., at *10-11.

The Court stated it was not surprising the Defendant changed his profile photo during the litigation and further that the Defendant did not realize that changing his profile photo would “undermine discoverable evidence.”  Katiroll Co., at *11.

The Court held that the spoliation was unintentional; however, there was some prejudicial loss to the Plaintiff.  Katiroll Co., at *11.

The Court constructed the following solution:

Defendant was to coordinate with the Plaintiff to change his profile photo back to the infringing photo.  This would not be an additional act of infringement.

The Plaintiff would print any of the posts they considered made their case.

The Defendant would change his profile photo to a non-infringing photo immediately after the Plaintiff printed the posts they needed.

Katiroll Co., at *11-12.

Bow Tie Thoughts

The Court did a respectable job recognizing the realities of social media usage, control of public profiles and constructing a remedy for the preservation and production of the ESI that did not sanction the Defendant.

The preservation of electronically stored information on social media websites can cause a headache in determining the right method to preserve it.  Given the number of iPhones and Droids in use, status messages, photo uploads and email can be created almost non-stop.

The simplest method is to simply print the Facebook profile, either as a hard copy or a PDF.  Screen captures are another option.  There are additional specialty software solutions for capturing websites such as HT Track and others designed for social networking sites such as Nextpoint. There are many tools on the market currently and others will continue to be developed in the future.

Joshua Gilliland, Esq., is the blogger for “Bow Tie Law.” The “Bow Tie Law Blog” is dedicated to untying the knotty issues of e-Discovery.

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