Social Media – Facebook, Twitter, and YouTube used to be personal means of social media and keeping up with friends. But now it is estimated that 72% of corporations are utilizing social media technology in some manner, and predictions are that adoption will expand within companies to improve internal collaboration and communication.
While the increased use of social media can lead to increased sales and communications, the eDiscovery preservation risk grows exponentially. Whenever litigation involves content from a social media site, there are special challenges that need to be addressed. This is also true of “non-content” data, or information about someone’s activities that might be relevant.
Consider the scenario of a company’s Facebook site, which regularly posts marketing information about new products. A disgruntled employee creates a fictitious person to log into those sites and post negative reviews of the products or company. Does the company have the right to find out the true identity of the poster? If discovered, can the poster be fired, and if there is ensuing litigation, what content is discoverable? Courts are increasingly addressing these issues of privacy and free speech – often siding with the employer’s or litigant’s right to discovery.
However, in addition to the constitutional issues, there are very practical challenges to preserving social media data in the event of litigation.
Unlike documents or e-mail stored on a local server, most social media content is stored on the provider’s servers. Without consent from the user, access to the data usually requires a court order. Given the temporal nature of the data, actions should be taken quickly to preserve information before it is purged. Even after access is granted, care needs to be taken that specialized tools are used to properly collect and preserver the data.
Attempts to take a “self-collection” approach by using screen captures or web “crawlers” can easily lead to missing critical data or metadata. Or worse, damaging or overwriting data. Plus, there is the continuing challenge of observing chain of custody to avoid challenges later in court. Whatever scenario is presented, the timing and techniques for collecting and preserving data often require specialized eDiscovery technology and skills.
As more companies adopt social media for marketing and internal communication, there are increased risks of preserving data for eDiscovery. Plans by a company to use social media in any capacity should also include policies, procedures, and plans for collection and preservation of the data. Consulting with an eDiscovery expert can help develop those policies and procedures. More importantly, when confronted with social media eDiscovery, timing, tools and techniques are critical to meet the preservation challenge, and often require help from an eDiscovery specialist.
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[1] McKinsey Global Institute, “The social economy: Unlocking value and productivity through social technologies.”
[1] Although a distinction is often made between private and public information, courts are increasingly recognizing there is no personal privacy when material is relevant to litigation. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010); McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010).
