Social media has created several complications with regard to the U.S. discovery process in litigation. Among these complications are issues relating to (i) seeking out and turning over vast amounts of social media information, and (ii) preserving inherently fleeting social media information.
Turning Over Evidence
The U.S. standard for what is discoverable evidence is very broad. If relevant and proportional, almost any information sent, captured or stored on social media may potentially be discoverable. Under the Federal Rules of Civil Procedure, almost “‘any type of information that is stored electronically” can be discoverable. See FRCP 34 (2006 Advisory Notes); see also Robinson v. Jones Lang Lasalle Ams., Inc., No. 3:12-cv-00127-PK, 2012 L 3763545, at *1 (D. Or. Aug. 29, 2012) (“I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”)
The sheer amount and diversity of social media information produced by a company can make it difficult to find it all. This burden can be exacerbated by employees’ personal social media accounts: if information on their social media is relevant to the lawsuit, then it is possible the employer will be forced to find and turn over that information. The employer could also be required to turn over that information if the employer is deemed to have control over the employee’s relevant social media information.
The production requirements overlap with the similar, yet distinct, challenge of preserving all relevant social media posts and comments. Preservation can be challenging because social media commentary can often be easily deleted or modified, which presents two varieties of issues. First, employees may delete information that – unbeknownst to them – would be helpful in future litigation. Second, the dynamic nature of social media information means that parties can easily fail to stop deletion and the consequences of a “spoliation” finding – the loss of data that should have been preserved — can be severe and can include instructions for the jury to assume the worst (an “adverse inference” regarding missing evidence) especially if the data was deleted with an intent to deprive a party of the litigation.
Preservation requires parties to take reasonable steps to prevent the deletion or modification of information that is in their possession, custody or control that they know, or reasonably should know, is relevant to a pending or reasonably anticipated litigation or investigation. Employers sometimes have little understanding as to what information is being put on their official social media accounts, much less transparency as to what their employees are putting on their personal accounts that may be relevant to litigation. If these personal accounts are deemed to be under the control of the employer—e.g. they pay for the employee to enjoy premium service or the employee uses the account to talk to customers and clients about business – the employer may need to take reasonable steps to preserve relevant communications.
The concerns addressed in this post may, unfortunately, be an area of the law in which we will have to wait for the law to catch up with the technology. In the meantime, there are some precautionary measures that companies can take. First, the a company should bar employees from conducting business on non-approved data sources and communication channels such as personal social media accounts. Second, company policy should always address employee’s social media use within the bounds of applicable labor law (see our most recent post on that topic here). In order to implement the methods described above, a company should consider devoting resources to social media activities. These resources might monitor social media activity that uses the company’s name, approve proposed posts for company accounts, or organize and archive company-related posts. These precautions and procedures may also be beneficial to prevent litigation in the first place and to prevent public relations disasters, but become particularly important when litigation is imminent.
* The author gratefully acknowledges the assistance of Justin Wood.