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Same Rules Apply to E-Discovery of Social Media as to All Electronically Stored Information

Created on January 19, 2012

Vice President, E-Discovery

Everyday millions of people post their status, pictures, videos, etc. on Facebook, and it goes without saying that most don't consider the legal ramifications of publicizing that information. Usually people think twice before signing a contract, reading and analyzing every provision prior to signing on the dotted line because they know the document is legally binding. Given the growing prevalence of social media evidence in civil litigation, people may want to start applying a similar thought process before posting information online. In Lester v. Allied Concrete Co. (Va. Cir. Ct. 2011), Isaiah Lester and his legal counsel would have benefited from taking a more cautious approach when posting and removing material on Facebook.

In this wrongful death case, the plaintiff, Lester, sued the defendants, Allied Concrete Co. and Williams Sprouse, for monetary damages. After discovering a picture of Lester holding a beer and wearing a “I ♥ Hot Moms" on Facebook, the defendants filed a production request for screen print pictures of Lester's Facebook account, including all of his photos, status updates, etc. Subsequent to receiving the defendant's demand, Lester's legal counsel advised him to “clean up" his Facebook page to prevent “blowups of this stuff at trial." Lester deleted 16 incriminating photos from his Facebook account prior to production.

The court sanctioned both the plaintiff and his legal counsel for spoliation of evidence. According to case law, spoliation arises when information that is required or requested within discovery is destroyed or significantly altered. If a party negligently or intentionally withholds or destroys relevant information that might be required in a matter, they may be sanctioned for spoliation of evidence. In Lester, the actions below led to sanctions against the plaintiff and his legal counsel:

Conduct that led to the plaintiff's spoliation sanction:

  1. Deactivation of his Facebook account
  2. Deletion of 16 photos on his Facebook page prior to production

Conduct that led to the plaintiff's counsel's spoliation sanction:

  1. Instruction to client to deactivate Facebook account
  2. Certification of production responses containing a statement that the plaintiff did not hold a Facebook account

As evidenced in Lester, social media evidence is playing a growing role in civil litigation and has caused some confusion within the legal community on what discovery rules apply.

Attention Attorneys: The same rules (in particularly spoliation) apply to social media evidence as to any other potentially relevant information.

E-discovery expert Maura Grossman highlights this point in a recent Exterro webcast, “the same sorts of considerations apply to social media as apply to any other ESI if it is relevant and responsive, and you know it will be requested in discovery, you don't get to clean it up if it's embarrassing."

Law firms like the one who represented Lester are not the only ones who need to pay attention to social media spoliation concerns. According to Fulbright's 2011 Litigation Trends Survey, 45% of respondents (corporate in-house legal personnel) don't have any restrictions in place on social media at their company. This statistic displays a lack of understanding of the potential spoliation issues that may arise without a corporate social media policy in place. In the end, for in-house legal departments and law firms to be fully defensible they must both be proactive in identifying and preserving potentially relevant information from any source including social media before alteration or destruction can occur.

Watch a full recording of the “2012 E-Discovery Case Law Forecast: Hindsight is 20/20" webcast and learn more from Maura Grossman, as well as Judge David Waxse and attorney Dennis Kiker, on social media and e-discovery 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.