Litigation: Litigating over social media data

The new burdens associated with the rise of social media data may be a rude awakening to some in-house counsel and compliance officers.

If you have recently been involved with civil litigation, you know that defense costs are driven in large part by discovery requirements. Within the discovery process, the largest expenditure of resources often results from e-discovery. E-discovery involves the collection, review and production of forms of electronically stored information that may be relevant to the litigation, such as e-mail, spreadsheets, documents, PDFs, etc. The Federal Rules of Civil Procedure were amended in 2006 to formally account for the use of electronic forms of communication and data in the discovery process by codifying that civil litigants were entitled to discovery of electronically stored information.

Since 2006, companies have increased their reliance on electronic forms of communication. In the last five years, another new form of electronic communication has emerged in many parts of corporate America: social media such as Facebook and Twitter. These new methods of electronic communication not only alter the way companies deliver their message to the public, but they also raise new challenges in the litigation process. They will undoubtedly result in increased litigation burdens for companies that chose to conduct business through this new medium.

These new burdens may be a rude awakening to some in-house counsel and compliance officers. For example, a survey of 223 compliance personnel published in May 2011 by Smarsh Inc., reported that only one in seven had “complete confidence” that they could produce social media content of their company’s employees if specifically requested in e-discovery. By contrast, 87% of the same respondents were mostly or completely confident that they could produce e-mails.

These results are startling but not unexpected given the rapid rise of social media usage. Social media, like other new technology, creates novel challenges for in-house lawyers and compliance officials. When e-mail first leapt onto the scene of corporate communication, there was also a lag between its use in business and the ability of lawyers to feel confident that they could capture the information as needed. Companies often out-sourced e-mail storage, further complicating efforts to gather and sort material required for litigation and other purposes. Today, companies routinely either house their own e-mail internally or have clear contractual obligations with their vendors as to who owns the data and when it can be retrieved.

On the other hand, use of social media is a new phenomenon. Data are not typically housed within the companies whose employees use this form of communication. Instead, the data are typically housed by the social media sites themselves. The social media companies usually do not bind themselves to store their users’ data. And these companies often take the position that they are not required to turn over data they have, at least as to third parties, under the auspices of the Stored Communications Act.

To be sure, some regulators require that the users of social media retain records of what they post on social media sites. FINRA is one example. Companies falling within these regulatory regimes have been forced in some instances to create systems to maintain social media data. This should allow these companies to have a relatively easier time should they find that social media data are called for in e-discovery. But other companies that are not so regulated, and whose in-house counsel or compliance personnel have not planned adequately for the use of social media, may find litigation requests for social media to be more daunting.

Just as companies today still wrestle with whether, and how, they should use social media in conducting their business affairs, lawyers and courts are similarly confronted with new issues in the use of these forms of communication. Legal commentators who participate in the Sedona Conference have taken the position that social media content should be treated like other forms of electronic communication for purposes of e-discovery obligations. But the methods of storage and retrieval of social media content differ from that of e-mail; a difference that litigators, in-house counsel and compliance personnel are likely to confront in litigation as the use of social media increases in business settings.

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Jamie Fleckner

Jamie Fleckner is a partner in Goodwin Procter’s Litigation Department and heads the firm’s ERISA Litigation Practice. He can be reached at jfleckner@goodwinprocter.com

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