Whaley: Adventures in e-discovery and social media

 Whaley

By Alan Whaley

It’s no secret – the use of social media is commonplace and widespread. Online statistics say that Facebook had over 1.2 billion active users in the first quarter of 2014, and Twitter has 255 million active users sending 500 million messages a day. And social media is not just for individuals anymore; organizations use it on a large scale, too. According to a study by the University of Massachusetts Dartmouth Center for Marketing Research, as of July 2013, 77 percent of Fortune 500 companies were on Twitter, and 70 percent of them had Facebook accounts.

With all this social media use, it is not surprising that social media can have a significant impact on litigation and discovery. Occasionally something dramatic provides a cautionary tale, like the confidential settlement in a Florida employment discrimination case that the defendant private school voided when the plaintiff’s daughter bragged about it on her Facebook account. But there are many aspects of social media which, while not flashy, present interesting e-discovery challenges.

Relevance, scope of discovery

Some litigants have tried to take the position that their social media content should not be discoverable because some of it is personal and revealing it could be embarrassing. That argument usually doesn’t work. As with other kinds of evidence, social media content is potentially discoverable if it is relevant to the issues in a case. For example, the courts in EEOC v. Simply Storage Mgt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), and EEOC v. Original Honeybaked Ham Co. of Georgia, 2012 WL5430974 (D. Col. Nov. 7, 2012), both ruled that defendants in sexual harassment cases were entitled to discover some content posted on plaintiffs’ social media sites because it was relevant to the plaintiffs’ claims of emotional distress and financial injury.

The information deemed discoverable was not limited to content that directly addressed or commented on the issues in the litigation, nor was it limited to the public portions of the plaintiffs’ social media profiles. Most courts do not accept the argument that a party has a privacy interest in protecting information posted to a social media account, even its non-public sections. But they are also reluctant to order that all of a party’s social media content is discoverable. So they devise guidelines or methods to identify only the relevant content. In the Honeybaked Ham case, that involved appointing a forensic consultant as a Special Master to help filter through some of the information, and the court’s in camera review of other content. The cost of the consultant was shared equally by the parties.

Access to data

Knowing a party has social media content that may be relevant is one thing; getting access to it is another. A significant factor in seeking access to another party’s social media content is the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA was written in the mid-1980s, before the advent of the World Wide Web, and it presents an often cumbersome framework that courts have found to be an imperfect fit when applied to social media. But it prevents Internet service providers from supplying access to the non-public electronic communications of their subscribers, so simply sending a civil subpoena to Facebook will get you nowhere, and in some courts will be sanctionable as an overreaching discovery tactic.

There are exceptions under the SCA for government-issued subpoenas and warrants, and the analysis in a given case will depend somewhat on whether a provider is deemed to be an “electronic communication service” provider or a “remote computer service” provider under the statute – and sometimes the same provider can be both an ECS and an RCS. In addition, sometimes the type of data storage (Is it “temporary?” Is it “backup?”) determines whether the SCA applies. Parsing through the nuances of these definitions is beyond the scope of this brief article, but the upshot is this: it will be difficult if not impossible to force an ECS or RCS provider to provide access to social media content without the consent of the subscriber. If the subscriber won’t give consent voluntarily, one option is to seek a court order directing that the consent be given.

Preserving data

One significant aspect of electronic data is that it frequently changes, and that is especially true of social media content. Therefore, at the beginning of a case it may be particularly important to try to preserve the status of another party’s social media information. You can do this with a preservation notice to that party, or if you think additional measures are needed, consider a preservation request to the service provider or even a “preservation subpoena” and motion filed with a court.

Authentication

If a party has obtained social media content and needs to get it into evidence, authenticating that evidence may become an issue. One approach is to preserve and print a static image from a social media account – that can easily be done with a party’s public social media posts, for example. But the personal testimony of an authenticating witness, like the person who collected and printed the image, will probably be necessary. And with some kinds of content, like video or audio materials, special software and the assistance of a forensic computer consultant may be needed.

Other issues

There are social media issues that practitioners should at least be aware of. These include identifying who actually has possession, custody or control of social media content – sometimes, it’s not exclusively the subscriber. And there are very important ethical considerations affecting how a lawyer should use social media, both in the discovery context and otherwise. For example, it is widely considered unethical for a lawyer to “pretext” – that is, to seek “friend” status under false pretenses to gain access to someone’s social media content. And using social media recklessly, such as through blog posts or online comments, can invite trouble for lawyers and judges. In an information environment that can sometimes seem like the Wild West, circumspection is good policy.•

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Alan (Skip) Whaley is a partner in the litigation and appellate practices of Ice Miller LLP. His practice focuses particularly on health care and product liability cases, e-discovery, confidentiality and privacy issues, regulatory and licensing matters, and risk management. He can be contacted at 317-236-2362 and [email protected]. The opinions expressed are those of the author.