Have you been into maintaining daily notes/journals? Are you In habit of writing and maintaining these journals? Which apps do you prefer or use for mai.
Social media saturates nearly every aspect of our lives. As a result, social media accounts can be a goldmine of potentially discoverable information for parties in litigation. Unfortunately, courts, legislatures and practitioners have struggled in developing cohesive guidelines for keeping up with the fast-paced world of tweets and hashtags. Thus, seeking discovery of posts, comments and messages on social media platforms can be fraught with traps for the unwary. In this two-part series, we address 20 basic questions that often arise when parties seek social media records or other forms of electronically stored information, or ESI. Here are the first 10.
1. What type of information is contained in social media? A wide variety. Social media sites store vast amounts of user data, including pictures, messages, videos, emojis, public and private posts, details about the users' friends and acquaintances, and an abundance of associated metadata stating when, where and how the account holder used the platform. Ubar 4 1 4. In litigation, this type of information often makes or breaks a case.
2. Do courts allow social media 'fishing expeditions'? Generally no. Most courts refuse to allow overbroad requests for social media data where there is no showing that the information sought is likely to lead to relevant evidence, or where the requests are disproportionate to the needs of the case. See Montgomery v. Wal-Mart Stores, Inc., No.: 12cv3057-JLS (DHB), 2015 U.S. Dist. LEXIS 188010, *25 (S.D. Cal. July 17, 2015) ('Plaintiff objects to producing any and all social media information as it is a dramatically overbroad and harassing fishing expedition. The Court agrees with Plaintiff.') (citations omitted); see also Winchell v. Lopiccolo, 38 Misc. 3d 458, 461 (N.Y. Sup. Ct. 2012) ('[D]igital 'fishing expeditions' are no less objectionable than their analog antecedents.').
Some courts, however, have been more receptive to broad requests for social media data. See Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015) (finding photographs on social media sites were relevant in the context of a personal injury case because there was 'no better portrayal of what an individual's life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury'). Whether a court deems requests for social media information overbroad likely depends on the claims in the case: Photographs posted online are more likely to be relevant in a personal injury claim than in a trade secrets dispute. Tailored, targeted requests for relevant information are more likely to be enforced than demands for the entirety of a party's online presence.
3. Will courts order a party to produce his or her login or password? Usually no. Allowing a party unrestricted access to social media content implicates significant privacy concerns, so most courts are unwilling to force a party to produce login information. See Howell v. Buckeye Ranch, Inc., No. 2:11-cv-1014, 2012 U.S. Dist. LEXIS 141368, at *3 (S.D. Ohio Oct. 1, 2012) (finding that 'defendants' discovery request is overbroad' because plaintiff's 'username and password would gain defendants access to all the information in the private sections of her social media accounts -- relevant and irrelevant alike'); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011) ('Just as the Court would not give defendant the ability to come into plaintiff's home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant.').
Although ordering the production of login information is drastic, some courts have been willing to go to that extreme under certain circumstances, such as in personal injury cases or where much of the information is already publicly available. See Largent v. Reed, No. 2009-1823, 2011 Pa. Dist. & Cnty. Dec. LEXIS 612, at *17 (Nov. 8, 2011) (Pa. CP Franklin Nov. 8, 2011) (compelling personal injury plaintiff to turn over her login information to defense counsel and allotting defense counsel a 21-day window in which to inspect her profile). This approach obviously glosses over the fact that turning over login information allows an adversary to discover both public information and information that the user intended to remain private.
4. What if a party obtains consent to directly access her adversary's social media account? Be careful what you ask for. A party may be willing to provide direct access to her social media accounts and may even voluntarily share her login information. While this initially might seem appealing, volunteered access presents its own challenges.
First, although voluntarily providing direct access may appear to be a good faith gesture, it also shifts the burden of hunting for relevant information to the requesting party. See Solarcity Corp. v. Doria, No.: 16cv-3085-JAH (RBB), 2018 U.S. Dist. LEXIS 8286, at *15-16 (S.D. Cal. Jan. 18, 2018) ('Because [Defendant] provided SolarCity with the 'username and password to all [of his] social media accounts and e-mail accounts[,]' Plaintiff may efficiently search the electronic data in those accounts,' but by 'casting a wide discovery net, SolarCity may not now complain about the burden of 'sifting through' the produced ESI for the documents it seeks.'). Second, by accessing the account directly, the requesting party risks altering, corrupting or otherwise damaging the account's contents. See German v. Micro Elecs., Inc., 2013 U.S. Dist. LEXIS 4594, *21 (S.D. Ohio Jan. 11, 2013).
It almost always will be preferable to require the responding party to produce specific responsive content while remaining ready to move to compel in the event the responding party does not comply.
5. May parties use a subpoena to obtain relevant social media evidence directly from the social media platform? It depends. If a party claims she is unable to produce records or postings from her social media account, a natural solution might be for the requesting party to subpoena the information directly from the social media platform. Not so fast. Social media providers almost always object to subpoenas for social media content based on the Stored Communications Act. See 18 U.S.C. Sections 2701 (2012), et seq. The SCA substantially limits a social media provider's ability to disclose the contents of electronic communications. See Shenwick v. Twitter, Inc., U.S. Dist. LEXIS 22676, *7 (N.D. Cal. Feb 7, 2018). In most circumstances, the SCA permits disclosure of only 'non-content' information about the account (such as the subscriber's name, address, records of session times and duration, etc.) in response to a subpoena. As the California Supreme Court recently explained, however, communications configured as 'public' by the user and that remain 'public' at the time the subpoenas were issued, fall within the SCA's 'lawful consent' exception. Facebook, Inc. v. Superior Court, 4 Cal. 5th 1245, 1271-77 (2018).
Day One 1 10 1 – Maintain A Daily Journal Template
6. What about asking the court to order a party to consent to the discovery of their social media content? You may be on to something here.Given the challenges identified above, parties seeking social media content might have better luck persuading a court to order the responding party to consent to the platform's disclosure of the sought-after social media, which triggers an exception to the SCA. 18 U.S.C. Section 2702(b)(3) (permitting disclosure of the contents of communication with the lawful consent of the originator or an addressee or intended recipient of the communication). This approach has been successful in a number of cases. See Juror No. One v. Superior Court, 206 Cal. App. 4th 854, 855 (2012) (discussing the trial court's decision to order a juror to execute a consent form authorizing a social media provider to release for in camera review all items he posted during the trial); Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 656 (2010) (ordering plaintiff to deliver to counsel for defendant a properly executed consent and authorization permitting defendant to gain access to plaintiff's social media records); Glazer v. Fireman's Fund Ins. Co., No. 11 Civ. 4374 (PGG) (FM), 2012 U.S. Dist. LEXIS 51658, at *8 (S.D.N.Y. April 4, 2012) (declining to decide whether social media communications were protected by the SCA and ordering the plaintiff to consent to disclosure).
7. What if the account privacy settings restrict access? Generally this will not matter if the content is otherwise discoverable, although courts can consider privacy interests in evaluating the proportionality of discovery requests. Henson v. Turn, Inc., 2018 U.S. Dist. LEXIS 181037, at *15 (N.D. Cal. Oct. 22, 2018). Otherwise, there is no general privilege or privacy right that attaches to social media information. The mere fact that users may have set their profiles to 'private' will not render their information immune from discovery. See Nucci, 162 So. 3d at 153-54 ('We agree with those cases concluding that, generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings.'); Patterson v Turner Constr. Co., 88 A.D.3d 617, 618 (1st Dep't 2011) (ruling that the postings on plaintiff's social media accounts, if relevant, 'are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access'). Private social media information is discoverable in the same manner as a private personal diary. Id.
8. Will a court agree to conduct an in camera review of a party's social media evidence? Generally no. Most courts decline to conduct an in camera review of social media evidence because it forces the court to spend precious time and resources sifting through what could be an ocean of irrelevant information. See generally Tompkins v. Det. Metro. Airport, 278 F.R.D. 387, 389 (E.D. Mich. 2012).
Exceptions do exist, however. See, e.g., Juror No. One, 206 Cal. App. 4th at 855; Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 U.S. Dist. LEXIS 66432, at *7 (M.D. Pa. June 22, 2011) (conducting a 'thorough in camera review' of the personal injury plaintiff's social media account).
9. Might a court order the production of profiles for 'attorney's eyes only'? Maybe. Some courts have ordered a responding party to produce social media evidence on the condition that only the requesting party's attorney may review the materials. See Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 U.S. Dist. LEXIS 85143, at *13-14 (D. Nev. June 20, 2012). In Thompson, the court ordered the plaintiff to upload all information from her social media accounts to a hard drive and to provide the hard drive to the defendant's attorney. The court instructed the defendant's attorney to provide a list of discoverable material to the plaintiff's counsel within seven days of receiving the hard drive.
The method utilized in Thompson arguably protects against overly intrusive forays into a responding party's privacy while simultaneously allowing the requesting party's attorney access to relevant, discoverable information. The drawback is that it places the burden of searching for that information on the requesting party's shoulders.
10. Will a court order the production of Fitbit or other activity tracking data? Possibly. At least one court has contemplated ordering this type of content. See Hinostroza v. Denny's Inc., 2018 U.S. Dist. LEXIS 109602, at *11-12 (D. Nev. June 29, 2018). In Hinostroza, the defendant requested that the personal injury plaintiff produce data from a Fitbit or other activity tracker for a period of five years. Id. The defendant argued that information obtained from an activity tracker was relevant because, 'if Plaintiff is walking/running miles every day, then this would affect the validity of her claim [and allegation of future lumbar surgery].' Id. The court agreed and ordered the plaintiff to supplement her response to fully describe the search she conducted for Fitbit data.
The opinions expressed in this article are those of the authors and do not necessarily reflect the views of the firm or its clients. The contents of this article are intended to convey general information only and not to provide legal advice or opinions. An attorney should be contacted for advice on specific legal issues.
December 7, 2016 by Josh Ginter
Click to create an entry in Day One: New Year's Questions
There’s always a certain degree of anticipation—an excitement in the air—for the turn of the calendar at the end of the year. It’s impossible to look at January 1st and not think about the chance for a fresh start.
By the same token, December 31st offers a tremendous opportunity to reflect. Undertaking a level of introspection—reflecting on the prior year’s accomplishments, failures, surprises, and expectations and how they are currently affecting you—is tremendously powerful. No matter who you are, it’s hard to know where you’re going if you don’t know where you’ve come from.
There’s no better way to undergo this year-end personal review than by recording it in a journal.
Year-end journaling is a gigantic work-in-progress. I began keeping a journal in 2011 and have kept fairly solid records of my life experiences ever since. But in the grand scheme of things, it takes far longer than five years to look back on your recordings and find appreciation in your own growth. Some people may appreciate self reflections mere months later, but I've found that a lifelong learning process is easier to witness in lengthier segments.
A good way to start is a half-hour session in the last few weeks of December. Sit down, brew a cup of coffee, open Day One, and just write. If you can just sit down, you’ve already overcome the most difficult part of this process.
What should you write about? What questions should you ask yourself? Here is a list of 10 questions to contemplate and answer at the end of the year.
(Remember: It doesn’t matter how detailed your answer or how specific your thoughts. The most important part is opening yourself up and writing a letter to your older, wiser, smarter self. Just get started.)
1. What was your favorite single day/event of the year?
Close your eyes and think about all that’s happened in the last 12 months. What’s the first thing that pops into your head that puts a smile on your face? Whatever the event, start off this introspection with a dose of positivity. It's a great way to get the creative juices flowing.
2. What was the best thing you built/created?
More often than not, building and creating is a lengthy process. It starts with an idea and grows from there. Aiseesoft mac fonetrans 9 1 16. But finishing a project is the most rewarding part. It takes guts to complete what you started, and the reward is usually worth the process. We’re all builders in some way. What did you create this year?
3. What was the most impactful decision you made for you and your family’s future?
This might be a more difficult question to answer. It could also be worded as “Did I/we do something that will have a lasting effect on our family’s lives?” Things like moving to a new neighbourhood, going on a family vacation and experiencing a new culture, or investing in your or your child’s education might be potential answers.
By answering this question, you can bridge the prior year’s events with future year’s experiences. And, down the road, this answer will be interesting to look at to measure the impact of past decisions.
4. What was your best financial achievement?
Although success and achievement are often measured in non-monetary terms, it’s helpful to look back at the last year and reflect on your financial decisions as well. Did you buy your first home? How to compact files on computer. Did you take the plunge and enter retirement? Did you pay off a loan hanging over your head? Or did you reach your savings goal and go on a vacation in the middle of winter?
We all have different financials goals, success, and struggles. Reflecting on them is fundamental to fulfilling future goals.
Day One 1 10 1 – Maintain A Daily Journal Pdf5. Did you achieve any lifelong goals?
Crossing items off your bucket list is incredibly rewarding. Perhaps you bought your dream vehicle, or drummed up the nerve to skydive out the back of an airplane. Maybe you visited a new country or met your favorite athlete. Or maybe you graduated from an education program.
Day One 1 10 1 – Maintain A Daily Journal Template
This question is particularly fun. Bucket lists can feel endless, but checking off an item or two each year usually means you’re not just existing but living.
6. What was the hardest lesson you learned over the past year?
Making mistakes is easy. Admitting them and learning from them is incredibly hard. Which is why reflecting on your mistakes a few months later can often help in the overall learning process.
Experts say the best way to learn something is to teach it to someone else. So, if you’ve learned a hard lesson this year, perhaps consider helping someone else overcome what you struggled with.
7. Did you develop any new hobbies or passions? Are there any new hobbies or passions you want to develop in the New Year?
The daily grind can take its toll, so having hobbies is a perfectly healthy way to turn your mind off. Some people collect stamps or coins. Others shoot photographs. Others like to go skiing, snowboarding, or surfing. Still others like to craft, scrapbook, or play the piano.
If you don’t have any specific hobbies, perhaps you want to jump into one for the coming year. Write down what you'd like to do in the new year.
8. What was the most humbling experience of the past year?
This can be related to question #6 above, but it can also be taken a step further. Sometimes the worst happens and it serves to remind you of your humanity. Maybe you lost your job, or you got into a fight with someone you care about, or maybe you lost a loved one. These are hard conversations to have, but clarifying your thoughts on these events over time can have a lasting impact on how well you know yourself.
Perhaps more importantly, what did you learn from this humbling experience?
9. What is the one thing you are most grateful for from this past year?
This is my favorite question on this list. It’s difficult to show your gratefulness to others when life flies by at top speed, so these quieter moments of reflection offer a chance to recognize the gifts around you. I’m particularly grateful for my wife, for a fulfilling career, for hobbies that let my mind be creative, and for the opportunity to learn from friends.
Your list will surely be unique to you and your life. Take the time to make it. The people and gifts around us deserve proper reflection at the end of the year.
10. What are your personal goals for the coming year? Family goals? Religious goals? Health goals? Financial or career goals?
Finally, if you’re tired of reflecting on the year that was, then it’s time to dream about the year that will be. Of all the goals on this list, this might be the easiest to measure on an annual basis. Do you want to check another item off your bucket list? Do you want to attend your child’s high school graduation? Do you want to start a family? Perhaps get married?
No dream is too big or too small. Set one goal. Five goals. Ten goals. Make some that are easily achievable, others that are harder, and still others that may seem impossible today.
This isn’t meant to be an exhaustive list of year-end journal questions. Rather, we’re hoping this gets your introspective juices flowing. There’s a lot of value in returning to these questions midway through the year. See your progress on current year goals. See if decisions from the prior year had a lasting impact on you or your family. Take time to appreciate personal achievements a second (or third) time.
At the conclusion of this year, we hope these questions give you a chance to reflect upon and appreciate the past, and look forward to the new year ahead.
Click to create an entry in Day One: New Year's Questions
About the Author
Josh Ginter is a freelance writer, amateur photographer, and studying accountant. He writes about photography, travel, and other cool things at The Newsprint”
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