Surviving Social Media: Understanding Social Media As an eDiscovery Gold Mine

Vol. 1, No. 4

Gwynne Monahan is best known by her Twitter handle, @econwriter5. She has written several articles on open source applications for lawyers and legal professionals, and has presented on open source as well as issues surrounding social media. She is currently spearheading Small Firm Innovation.

 

  • Knowing how social media networks separate public and private information is increasingly important.
  • It is also important to know that other lawyers or courts in which you operate may not know how social media networks operate.

 

Solo and small firm lawyers are not immune from the constant drumming of social media as a marketing, networking, and client development tool. Books, blogs, continuing legal education webinars, conference sessions, and other outlets often frame social media networks as cost-effective methods for marketing your law practice, networking with other lawyers, and building client relationships.

 

Although there is some truth to that, it also presents a narrow view of social media. Many lawyers still view social media networks as time wasters. A tweet is no substitute for a handshake. Others are reluctant to engage because ethical rules do not seem to offer clear guidance on using social media networks for marketing or client development.

 

Those are certainly valid points, but social media is here to stay, and it is quickly expanding beyond marketing and moving into the courtroom. From jury instructions on no tweeting and blogging during trial to discovery motions requesting information from Facebook, Twitter, and LinkedIn to strengthen or weaken an employee dismissal case, divorce settlement or First Amendment challenge, social media has become an eDiscovery gold mine.

 

It is in this realm of eDiscovery where lawyers’ understanding of how social media networks operate is increasingly important.

 

In order to gain an understanding of how social media networks operate, and understand the relationship of social media networks and eDiscovery, it is necessary to use them. This does not mean spending hours each day posting information to Facebook or Twitter. Rather, it means going through the process of creating an account, adjusting privacy settings, and getting a feel for how social media networks function. For example, how does posting to Facebook differ from posting to Twitter, LinkedIn, or Google +? And when might posting to Facebook, Twitter, and LinkedIn at the same time be relevant? Just as patterns can be discerned from actions, so, too, can patterns be discerned from social media activity.

 

Getting a feel for how social media networks function is one aspect of using social networks. Another, perhaps more important aspect, is how the privacy settings impact who can see what types of information. As both Crispin v. Audigier and Romano v. Steelcase Inc. demonstrate, the courts look to the privacy policies, and user privacy settings, of social media networks to help determine what information, and whether or not that information is admissible.

 

Both cases demonstrate that the relationship between social media and eDiscovery is both old and new, and that it is evolving as the law gains an understanding of how social media networks operate.

 

The relationship is old in that, like phone records and email, it is discoverable. It is new in that information contained on social media networks can be both public and private. In other words, social media networks are a hybrid of an open network and a “walled garden.” Some information is readily accessible by the public, including lawyers, judges and potential jurors, while other information is accessible only to parties who have been given permission. Knowing the difference, and how social media networks separate their “public” information from more “private” information, is increasingly important.

 

In Crispin, for example, the court held that the Stored Communications Act (SCA) protected messages on Facebook and MySpace that were not publicly available. The court made the distinction between Facebook wall posts, and Facebook messages. It looked to the privacy settings of Facebook to help make the distinction because a user’s privacy settings dictate what is publicly viewable, and what is viewable only to those invited. Although information posted to a Facebook wall may be public, information sent through Facebook’s private messaging system is not necessarily public.

 

In Romano, the court held that private messages were admissible because contradictory information was posted in the public areas of Facebook and MySpace. Public posting of contradictory information, in the eyes of the court, meant there was a reasonable expectation of relevant information being included in private messages, too. Such a conclusion is reached with an understanding of how social media networks operate, and how “public” information is distinguished from “private” information.

 

Although it may seem obvious how social media networks like Facebook and MySpace distinguish between “public” and “private” information, it may not be as obvious with other networks, like Twitter or Google +.

 

Twitter, too has a private messaging system, called Direct Message. Unlike Facebook’s private messaging system, however, it is limited to 140 characters. Twitter also allows its users to make profiles public, or private. In the parlance of Twitter, private accounts are “protected” and only followers approved by the account creator can see tweets, send tweets and send Direct Messages. For many, Twitter is not as intuitive as Facebook, or LinkedIn, and as a result, may be overlooked or ignored all together. However, it shares similarities with other social media networks, such as email notifications when a private message is received.

 

Google + is organized around Circles, or groups of people separated into default categories, or categories created by the user. Information can be shared with all of a user’s Circles, some, one, or even publicly. And like Facebook, a user can choose what profile information is publicly viewable, and what information is viewable only to those in Circles. Comments are threaded, and a user can control email notifications for a variety of actions, like if the user has been added to a circle, mentioned in a comment or if another user has shared a post. All of those actions have some impact on eDiscovery, and knowing the various settings is beneficial.

 

If you’re an avid user of social media and know how it operates, it’s important to remember that not every court, nor every lawyer, has an understanding of how social media networks operate, and how, or if, “public” information is distinguished from “private” information. If you’re not using social media, then gaining such an understanding is increasingly important.

 

Chances are that more social media networks will come to market, so having or gaining an understanding of how social media networks operate can put you at an advantage over opposing counsel, allow you to educate judge and jury, and help you continue to be a zealous advocate for your clients.

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