E-discovery: “Liking” social media

In-house counsel’s guide to navigating discoverability

Social media’s prevalence in society continues to rise, as Americans currently spend at least one-fifth of their time online using Facebook, Twitter or one of the many other available platforms, effectively replacing email as the primary mode of day-to-day communication. Further, social media platforms have penetrated the professional realm, with nearly 80 percent of Fortune 100 companies using some form of social networking to market products and build consumer relationships.

Despite the numerous benefits offered by social networking, these media present several risks. Users often engage in extremely candid discussions via social media, producing a potential evidence goldmine for establishing alibis, timelines and proving or disproving a party’s claim in litigation. When engaged in litigation, corporations attempting to apply existing e-discovery law to social media—and avoid sanctions for discovery misconduct—have likely incurred numerous headaches in the absence of a clear and governing judicial standard. To avoid getting bogged down by this new technology, companies should proactively prepare for potential social media discovery obligations by using recent case law for guidance while adhering to the basic canons of the Federal Rules of Civil Procedure and e-discovery best practices.

Recent case law identifies a key question related to social media privacy and, by extension, relevance. Although courts have gone to different lengths to measure relevance, the emerging trend seems to favor greater permissiveness for discovery of social media and a strong likelihood that any privacy concerns will be eclipsed by the weight and relevance of the requested information. Notably, many courts have been highly critical of privacy claims, dismissing them as “wishful thinking” (Romano v. Steelcase Inc.) or reasoning that voluntarily posting an array of personal information to a website infers an intention to share and precludes any expectation of privacy (Zimmerman v. Weis Markets Inc.) As courts exceedingly continue to employ such logic, corporations should prepare to preserve any and all potentially relevant social media data from relevant entities.

While current decisions underscore a core discovery principle favoring relevance, corporations should keep other discovery principles and obligations in mind with regard to social media. Most courts recognize that data from these sites is generally discoverable, thus all obligations to preserve, collect and produce apply. However, applying these obligations to social media bears several unique technical challenges, namely due to the fact that the data—which changes frequently on the social media sites—is retained by the platform provider on remote servers. Accordingly, acting immediately with regard to any discovery preservation obligation is imperative.

Based on existing case law, acting immediately requires identifying all potentially relevant data, then informing the relevant users and technology providers of a litigation hold to ensure a defensible preservation process. Further, corporations must pay close attention to regulatory obligations such as the Stored Communications Act, which requires opposing party’s consent before accessing electronically stored information (ESI). Notably, almost every court addressing social media has held that consent cannot be obtained by subpoenaing the provider or “fraudulently friending” the user for the sole purpose of investigating his or her profile. As such, the requesting party must obtain consent from the user—or issue a court order, should they refuse—before accessing the data. Although many platform providers offer a “download your information” feature that converts social media information to a ZIP file, self-collection gives rise to problems regarding chain of custody and metadata preservation, and consulting an outside discovery expert is highly advisable when attempting to collect this data.

In addition to discovery obligations, corporations should be proactive in crafting policies that manage employee use of social media. Due to the benefits of these media, it would be unwise to ban them for fear of heightened discovery obligations. Instead, corporations should craft clear policies regarding the use of social media in the workplace. These policies should implement a no-privacy stance to encourage prudent posting, while asserting the company’s right to monitor social networking conducted during the workday or through company-issued equipment and accounts. To ensure such a policy’s defensibility, those crafting it should make sure that the policy is thoroughly disseminated, clearly understood, easily accessible to all employees and updated when pertinent. Finally, such a policy should remain flexible in order to adjust to potential changes in the medium or relevant regulations.

The prevalence of social media will likely continue to grow in our everyday lives. Although it presents some challenges for corporations mired in litigation, its benefits are far too great to ignore. In the absence of a more definite legal standard, prudent companies will, for the meantime, proactively address the impact these media have on discoverability, regulatory compliance and corporate management. If the abundance of varied decisions is any indication, there is no “one size fits all” approach in the current landscape, and companies should carefully consider their corporate culture and relevant regulations when addressing social media.

Contributing Author

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David Meadows

David W. Meadows is managing director for Kroll Ontrack Discovery Consulting. He directs and oversees teams of consultants who advise corporate and law firm clients...

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