12 Jul 2012

Social Media in E-Discovery: Public or Private Information?

Posted in: Thursday E-Discovery Case Law No Comments

By Mike Hamilton, J.D.

Social media acts as a double-edged sword for e-discovery. On one side, legal teams tend to struggle with identifying the appropriate legal standards when social media content is deemed private by the courts, making it difficult to protect or prevent exposing harmful information. On the other, social media has become an alternative avenue to investigate claims and find case breaking information. As discussed in a previous post, Discovering Social Media: No Place for Privacy, deleting once-public social media posts after the duty to preserve has been triggered is considered spoliation. But what if public social media information isn’t deleted but only access to the information has changed, denying opposing counsel from viewing once relevant personal information?

This question was recently answered in Thompson v. Autolive ASP, Inc. (D. Nev. June 20, 2012). In this product liability and personal injury matter, the Nevada District Court granted the defendant’s (Autolive) motion to compel production of information from the plaintiff’s (Thompson), MySpace and Facebook accounts even though the social media data was no longer publicly available.

In April 2007, the plaintiff was involved in a serious car accident in which she received numerous physical and, as a consequence, emotional injuries due in large part to a defective airbag and seat belt. The defendant manufactured the airbag and seatbelt. Before formal discovery requests were made, the defendant found wall posts and photos on the plaintiff’s public Facebook account that provided evidence of plaintiff’s mental and physical state subsequent to the accident. After this information was found by the defendant, the plaintiff modified her Facebook privacy settings, rendering the once public information inaccessible. When a formal production request was made by the defendant for the specified social media information, the plaintiff subsequently produced only “[51] heavily redacted pages from her Facebook wall, and eight photographs.”

As a result of this limited production by the plaintiff, the defendant motioned the court to compel a complete production of the plaintiff’s entire Facebook and MySpace accounts. The plaintiff argued that the social media production request was a “fishing expedition,” encompassing irrelevant information to the case. The court decided otherwise, stating that the plaintiff’s public Facebook account “provid[ed] evidence of Plaintiff’s post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress,” making this evidence relevant to the plaintiff’s claims. The fact that the plaintiff left her Facebook account public enabled the court to find that the Facebook material sought could be “reasonably calculated to lead to the discovery of admissible evidence.” As a result, the court granted the defendant’s motion to compel discovery for five years of content from the plaintiff’s social media accounts.

THE E-DISCOVERY BEAT’S TAKE

Thompson proves to be another example of two things:

  • (1) Courts continue to find that individuals generally do not have a reasonable expectation of privacy in social media, regardless of privacy settings
  • (2) Clients and their attorneys still do not fully understand the crippling effects social media sites can have on a case. Social media evidence is proving to be weapon for legal teams to poke holes in the opposing side’s claims.

For corporate legal teams, Thompson signifies a noteworthy opportunity to attack and weed out frivolous personal injury or employment litigation claims. Creating an internal proactive e-discovery process that facilitates collaboration and immediate investigation of claims can lead to the early identification of case breaking information. But a process like this is not created overnight. To assist in creating this process leverage e-discovery technology. Employing technology will provide two major benefits: (1) Provides early access to potentially relevant evidence and (2) Generates the necessary transparency and collaboration for internal legal teams to guide IT, outside service partners and supporting law firms to ensure that information goes not fall through the cracks, i.e. relevant social media evidence.

To learn more about the latest trends in U.S. Data Privacy laws, including social media, view Exterro’s recent webcast, U.S. Privacy Laws & E-Discovery: Navigating a Brave New World, here.

 

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how  to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.


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