Social media’s fast growth has created yet another e-discovery headache for inside counsel. Federal Rule of Civil Procedure 26 (b)(1) allows discovery of relevant, non-privileged ESI. Under Rule 26(b)(1), data from outside social media sites like Facebook and Twitter is generally discoverable.
Social media presents unique challenges during litigation, because data changes fast, content often resides on third-party servers, and getting access may require knowledge of passwords or other privacy settings. Earlier versions are easily lost because few technologies exist to preserve social media.
Preserving, collecting and producing social media content takes planning. To gain control of social media data, inside counsel can:
- Limit or monitor at-work access to sites like Facebook and LinkedIn;
- Develop social media policies for employees with clear guidelines on acceptable and unacceptable uses; and
- Create a crisis management plan.
Social media e-discovery challenges
Social media is bigger than Facebook and Twitter. Many companies have internal social sites and collaboration tools that also generate hard-to-manage data. As non-standard data sources continue to expand, companies need data management practices that cover all types of content.
1. Preserving social media content
The difficulties with social media ESI begin with preservation. Social media sites, internal wiki pages and SharePoint sites get updated frequently. Both the external and internal sites may not have a good way to track or store changes. Content stored on third party sites may need passwords and some third-party providers have policies that limit access.
Preserving social media content—particularly information stored in the cloud by a third-party provider—requires a multipronged approach. If litigation is anticipated, the individual account user needs to be informed of the hold as it applies to the accounts in question. Additionally, a litigation hold should be issued to any third-party service provider. Regular reminders should take place to ensure compliance.
2. Collecting social media content
The process of collecting data from social media sites is also complex. Many companies have focused on capturing publically viewable information, rather than attempting to subpoena the provider, to make sure responsive data has been collected.
Parties may want to consider enlisting the help of an investigator or the service provider. If an outside party is used to assist with the collection of the data, they will need to be willing and able to testify to the authenticity of the data, the chain of custody, the collection process used and the precautions taken for accuracy.
3. Producing social media content
To date, the majority of court opinions regarding social media have dealt with production disputes and claims of privacy regarding content. For the most part, courts have refused to create a privilege for social media content, even when the account holder uses site features to limit viewer access. Instead, courts considering the question have generally found so-called restricted access private information to be within the scope of discovery as long as it is relevant.
For example, in Romano v. Steelcase Inc., the court ordered production of the private portion of a plaintiff’s Facebook and MySpace accounts. The plaintiff had argued that producing the information violated her privacy rights. Rejecting that argument, the court said sharing personal information with others “is the very nature and purpose” of social networking sites and efforts to keep the information private amounted to “wishful thinking.”
With courts viewing social media content as just another form of ESI, the best strategy for production may be cooperation. Cooperation can lower the cost of overall discovery and can prevent orders giving opposing parties full access to individual social media accounts. It may also avert judicial offers to “friend” witnesses in order to review disputed evidence in camera, as was the case in Barnes v. CU.
Practical strategies for managing social media content
Inside counsel can minimize the potential for social media sites to affect their discovery burden. Some strategies to manage social media content include:
- Limiting or monitoring at-work access. Many companies have pulled the plug on at-work access to sites like Facebook and LinkedIn. Methods used to block employee access include locking out URLs on computer workstations and company-issued laptops. Others have let employees know their use of social media sites is subject to employer tracking.
- Developing clear social media use policies. Companies who value the use of social media may want to create social media usage polices. Policies should clearly identify acceptable and unacceptable social media uses and make clear the risk of non-compliance. Train employees on the policy and on what they can and cannot divulge. Effective policies should reflect corporate culture and brand while balancing legal concerns.
- Creating a crisis management plan. With so many new kinds and users of social media, unanticipated major social media gaffes are always possible. Before disaster strikes, proactively identify a team to handle any unplanned crisis and protocol to resolve issues as quickly as possible. Make sure to learn from mistakes and update and revisit social media usage policies on a regular basis.