“E-Discovery” and the Undiscovered Territory of Social Media

What is “E-Discovery”? In general, Electronic Discovery “E-Discovery” refers to the interchange of electronically stored information (ESI), and is usually reviewed for relevance and privilege before being turned over to opposing counsel. ESI enhances the capability to uncover factual issues and is becoming a standard format for evidence in litigation.1

Broad discovery is a cornerstone of litigation process contemplated by the Federal Rules of Civil Procedure.2 However, with the onslaught of E-discovery and social media, the sheer volume of information and documentation has presented unprecedented challenges for litigators and the court system.3 Recognition of that volume of ESI was contemplated even prior to the 2006 amendments to the Federal Rules of Civil Procedure.

The 2006 amendments to the Federal Rules of Civil Procedure included amendments to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35.

The amendments cover five related areas:
(a) discoverable material; 
(b) early attention to issues relating to electronic discovery; 
(c) discovery of electronically stored information from sources not reasonably accessible; 
(d) the procedure for asserting claim of privilege or work product protection; and 
(e) a “safe harbor” limit on sanctions under Rule 37 for the loss of electronically stored information.
In addition, amendments to Rule 45 correspond to the proposed changes in Rules 26-37.4

Stored Communications Act
In 1986, Congress enacted the Stored Communications Act (“SCA”) which brought Fourth Amendment protection against unreasonable search and seizures into the realm of electronic information. At the time, a key influencer in the debate on SCA’s interplay with social media, Mark Zuckerberg, co-founder, CEO and Chairman of Facebook, was only two years old and the internet was in its infancy, primary used in research, academics and business.

The SCA “addresses voluntary and compelled disclosure of stored wire and electronic communications and transactional records held by third-party internet service providers (“ISPs”), and other online services.”5 “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir.2008) (citing Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L.REV. 1208, 1209-13 (2004)). Although this language was written over two and a half decades ago, and the Internet has evolved exponentially since Zuckerberg was a toddler, the SCA still governs. As such, lawyers and courts, in this social media age, have been scrambling to determine what is public, what is private, and what protections remain in effect pursuant to the SCA.

Summing up Social Media Discovery

One thing is for certain: electronic discovery is not going away. To effectively advocate or defend for our clients we need to be aware of electronic discovery, its inherent implications, how to obtain it, as well as its limitations. We need to be aware of the types of information our clients and their family members, friends, and associates have posted online. More litigants are requesting production of another litigant’s personal computer, giving rise to legal issues such as relevance, client privacy, and third-party privacy. Accordingly, we need to ask our clients at intake, or shortly thereafter, for a list of their personal social media assets or other repositories that may contain personal information.

Social Media Discovery also implicates the First and Fourth Amendment in an unprecedented fashion. We also need to understand the resistance of social media sites to provide this information considering the protections of the First and Fourth Amendments as well as its interplay with the SCA. Some courts are taking a stance on this issue on their own volition. It seems as though we can expect some modifications in the future, as this subject area is ripe for constitutional review, and/or a legislative review. At the same time, there may never be a “finality” to social media discovery in the sense that electronic discovery will always evolve and transform in a way the rules of civil procedure and communications laws had not previously anticipated.

The resistance of social media sites to comply with discovery requests has some judges irate. A perfect example is a New York case, People of the State of New York v. Harris, 11-80152, Supreme Court of the State of New York (Manhattan). In that pending case, Judge Matthew Sciarrino Jr. ordered Twitter to produce information about an Occupy Wall Street Protester’s posts by September 14 or face a fine.6 Sciarrino told Twitter the fine would be based on its earnings from the last two quarters. Sciarrino told Bloomberg News7, “I can’t put Twitter or the little blue bird in jail, so the only way to punish them is monetarily.” The request for production included user information from Malcolm Harris, arrested on October 1 as part of the Occupy Wall Street Protest, and all ‘tweets’ from September 15th to December 30th.8

Twitter responded by stating that if the district attorney can subpoena it for user information, the company would be “put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users’ rights by moving to quash these subpoenas itself.”9

This case may indeed address unanswered questions as it relates to electronic and social media discovery as well as require updates to the nearly two-and-a-half decade-old SCA: an act which had not contemplated the explosion of social media phenomena like LinkedIn, Facebook, Twitter, Instagram, etcetera, etcetera.

So what is the bottom line if you want to discovery electronic documents? If you are seeking electronic documents subject to the SCA, it must be determined who must give the consent for the disclosure. You must determine who has the ability to consent and who has indirect control over the sought documents. If that person, party, or entity does not voluntarily consent, then you must analyze if they can exercise control. If that person, party, or entity resists discovery, you should point out that the person, party, or entity retains control over the sought documents and this information cannot be sought any other way. If applicable, remember to mention that you are not seeking “content” and thus you are not barred by the SCA. It would also be good to point out, if applicable, that the sought information is not utilized for “backup protection” and thus does not meet the “electronic storage” requirement of the SCA. Thereafter, you should request that the person, party, or entity either give consent to disclose to any and all applicable entities or collect the documents for the requesting party.

The E-Discovery world is anxiously anticipating the decision of the New York Supreme Court and its jurisprudence regarding Twitter’s burden to respond to subpoenas for its users. The ruling will set a precedent for other social media sites. This outcome may also give litigators the green light to engage in more electronic discovery without jumping through so many hoops. At that point, the paradigm would shift. The “user” would no longer solely own the content nor be afforded prior protections. Thus, online content could be more readily used against the user and utilized in endless litigation. Please stay tuned…

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About the Author

Andrea Ciobanu is the managing partner at Ciobanu Law, PC, where she practices in appellate law, family law, ADA Compliance, Civil Rights, and Education Law in Indianapolis, Indiana. She is a YLD Scholar and serves as the YLD Public Education Committee Chair.

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1See Milberg LLP, Hausfeld LLP, E-Discovery Today: The Fault Lies Not in Our Rules . . ., 4 Fed. Cts. L. Rev. 2, 3 (2011); see also Roland Bernier, Avoiding an E-Discovery Odyssey,  36 N. Ky. L. Rev. 491, 497 (2009)

2Jones v. Goord, No. 95 Civ. 8026, 2002 WL 1007614, at 1 (S.D.N.Y. May 16, 2002).

3See, Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation, 200 Fed. Cts. L. Rev. 2, 3-4 (2000) (“Potentially discoverable records are stored according to computer logic, as opposed to ‘business-record’ logic, and can be difficult to locate and untangle from irrelevant and privileged records. The combination of multiple locations, tremendous volume, and arcane or non-existent records management practices is potentially explosive for defending counsel.”)

4Id.

5Larry Daniel, Lars Daniel, Digital Forensics for Legal Professionals: Understanding Digital Evidence From the Warrant to the Courtroom, 114 (2011).

6http://www.bloomberg.com/news/2012-09-11/twitter-told-to-produce-protestor-s-posts-or-face-fine.html

7Id.

8Id.

9Id.

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