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Discovering Social Media: No Place for Privacy

Created on June 6, 2012

Vice President, E-Discovery

The following post is a re-post from Peer to Peer Magazine which can be read here.

Every day, millions of people post status updates, photos and videos on social media websites such as Twitter, LinkedIn and Facebook. Once the province of teenagers and college students, these sites are now demanding the attention of legal professionals who are encountering evidence created via social media in a growing number of civil matters. In one such wrongful death case, Lester v. Allied Concrete Co. (Va. Cir. Ct. 2011), the plaintiff, Lester, and his legal counsel made costly mistakes when it came to the handling of his Facebook account.

After discovering a picture on Facebook of the plaintiff holding a beer and wearing a t-shirt emblazoned with the message “I ♥ Hot Moms," the defendant, Allied Concrete, filed a production request for the photos and status updates from the plaintiff's Facebook page. Fearing the information might undermine the image of its client as an emotionally damaged widower, the plaintiff's attorney advised its client to “clean up" his Facebook page. The plaintiff deleted 16 photos then deactivated the account altogether. Furthermore, the plaintiff's attorney certified in their document production responses that the plaintiff did not hold a Facebook account. The court ruled the plaintiff's actions as spoliation of evidence and ordered the plaintiff and his attorney to pay a combined $700,000 in penalties. Under preceding case law, spoliation arises under two circumstances:

  • 1. Information that is required or requested during discovery is destroyed or significantly altered
  • 2. Failure to preserve information for another's use as evidence in pending or reasonably foreseeable litigation

This case and others like it offer a cautionary tale for today's legal professionals. Despite the fact that requests for production of evidence on social media sites are becoming more common, uncertainty remains regarding how to identify, collect and preserve evidence stored on these third-party sites, as well as how to apply the appropriate data privacy or business rules.

Many legal teams, as evidenced in Lester, falsely assume that social media information is protected private information and is therefore not discoverable. After all, Facebook users now have the option of restricting some or all of their information to “friends" only. But according to the Gibson Dunn “2011 Mid-Year E-Discovery Update," courts continue to find that individuals generally do not have a reasonable expectation of privacy in social media, regardless of privacy settings.

The growing prevalence of social media in civil litigation requires legal professionals to start thinking about it proactively. And it's not just law firms who are playing catch-up. According to “Fulbright's 8th Annual Litigation Trends Survey Report," 45 percent of corporate attorneys reported having no restrictions in place on social media use at their company, displaying a lack of understanding of the potential spoliation risks that may arise without a corporate social media policy in place.

There isn't a one-size-fits-all blueprint for addressing the social media conundrum. Retrieving and preserving evidence from social media sites present unique and potentially expensive challenges. And while case law continues to evolve, legal teams need to include social media evidence in the earliest planning stages of e-discovery to ensure that all potentially relevant evidence is identified and preserved, even if it's just a tweet.

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.