Ten Tips for Managing Social Media in Ediscovery
With increasing frequency, companies across the globe are leveraging social networking tools to effectively market products and build consumer relationships. However, for an unprepared litigant, a discovery request can quickly go sour due to the dynamic nature of information stored on these sites. Below are ten tips to help manage risks and meet discovery obligations associated with social media.
- Start preparing now. The Federal Rules of Civil Procedure consider “any type of information stored electronically” discoverable—which generally includes data from social media.1 Although case law is still developing, Gartner predicts that by 2013, 50 percent of all companies will have been asked to produce material from a social media site for ediscovery.2 To avoid being blindsided by a request for such data, corporations and counsel should start managing social media now.
- Issue litigation holds early. Since social media data is discoverable, the duty to preserve falls on the parties named. However, several preservation challenges arise due to the unique nature of the data, which is not only constantly changing, but also password protected and stored on remote servers. Furthermore, there are few reliable technologies available to preserve this data. Based on these factors, timing is critical for proper preservation: if litigation is anticipated, all relevant data should be identified immediately and litigation holds should be issued to account holders and service providers.
- “Privacy” settings will not protect social media data from discovery. Although a uniform standard has yet to emerge, the judiciary generally seems to be moving toward greater permissiveness for the discoverability of social media. Based on recent decisions, there exists the strong likelihood that privacy concerns will be outweighed by a sufficient showing of relevance. Notably, courts have reasoned that the very nature of these sites requires disclosure,3 dismissing expectations of privacy as “wishful thinking.”4
- Obtain consent before collecting data. Social media data is usually retained solely by the service provider, and collecting it without consent of the user can violate federal or state wiretapping laws. Before attempting to access any information from a social networking site, make an effort to obtain the user’s consent or a court order.
- Don’t “false friend” to collect from social media. Courts and ethics committees strongly disfavor “friending” under false pretenses. Thus, anyone investigating a user cannot represent him or herself as a “friend” in order to gain access and surreptitiously collect data.5
- Avoid self-collection. In contrast to e-mail, servers or hard drives, collecting social media data collection is akin to existing web collection practices using page captures or web crawlers. To ease the collection process, sites like Facebook offer a “download your information” option. However, as in any data collection scenario, self-collection risks spoliation, so it is always smarter to collect with the assistance of an expert consultant.
- Leverage a service provider to conduct review. Arranging collected information for review poses several challenges, such as whether “families” must be maintained or whether each user’s collection should be presented in a single review document. These questions are better addressed when discussed with a service provider to ensure the most seamless review possible.
- Consider pertinent laws, such as the Stored Communications Act. Courts are beginning to order production of social media data. However, the Stored Communications Act (SCA) prohibits “Electronic Communication” and “Remote Computing” providers from divulging the content of its users’ communications and data.6 Case law relating social media production to the SCA is scarce; however, the Central District of California determined that social media sites acted as both Electronic Communication Service and Remote Computing Service providers—thus prohibiting production from a provider.7
- Don’t ban use of social media outright. According to a 2011 study, nearly 80 percent of Fortune Global 100 companies leverage at least one form of social media to conduct business.8 Policies that effectively ban social media in the workplace would rob an organization of a valuable tool for marketing products and connecting with consumers.
- Craft proactive policies that encourage prudent posting. In order to leverage the benefits of social media while mitigating the risks it poses for litigation, companies and counsel should craft proactive policies that manage employee use of social media. Such a policy should be well disseminated, detailing a no-privacy stance while reserving the company’s right to monitor usage. Furthermore, policies should be flexible to properly mesh the evolving role of these sites with existing information policies, applicable regulations and corporate culture.
Social media is here to stay. Practitioners and organizations must proactively address the impact these sites have on litigation and information governance. While the items identified above are a great start to understanding the potential issues posed by social media in the workplace, there is no “one size fits all” approach to managing this data. If you are unsure how to approach these difficult issues, engage a trusted custodian to navigate the tricky waters of these virtual mediums.
1Fed. R. Civ. P. 34(a) advisory comm. notes.
8 2011 Fortune Global 100 Social Media Study, The Burson-Marsteller Blog (Feb. 15, 2011), http://www.burson-marsteller.com/Innovation_and_insights/blogs_and_podcasts/BM_Blog/Lists/Posts/Post.aspx?ID=254