The Duty to Preserve Social Media

Vol. 14 No. 2

David Deppe is the president of UnitedLex in Overland Park, Kansas. He can be reached at dave.deppe@unitedlex.com.

The duty to preserve evidence, which arises when a party reasonably anticipates litigation, extends to all types of data sources that contain potentially responsive information. Attorneys routinely advise their clients to preserve data on computers, e-mail accounts, servers, and corporate databases. However, information on social media sites such as Facebook, Twitter, LinkedIn, Google+, MySpace, and others increasingly is being sought and used as evidence in litigation. Accordingly, parties to litigation are confronted with the issue of when and how they must preserve data stored on online networking sites.

Many companies now include Facebook and Twitter icons on their websites to encourage customers to communicate with the company and each other electronically. Information posted on these social media sites may be relevant to ongoing or anticipated litigation, and an analysis of the materials on these sites is necessary to comply with the duty of preservation required by the Federal Rules of Civil Procedure. Awareness of the preservation requirement is important, however, not just for businesses. Information posted on social media sites by individuals involved in personal lawsuits may be relevant to pending litigation, too, so individuals also may be subject to the duty to preserve.

 

Discoverability of Social Media Data

As with any discovery request, the test of whether or not information must be produced is determined by its relevance to the litigation. Federal Rule of Civil Procedure 26(b) allows a broad scope of discovery, and relevant social media data is covered by properly drafted discovery requests. Because postings to corporate Facebook and Twitter accounts are routinely ordered to be produced, counsel should ensure that their clients are preserving this data. Regarding personal web postings, the discoverability of social media data depends on whether the individual posting or sending the information has a right to privacy in the communication. The case law in this area varies greatly as to what constitutes a private posting to a public website. The answer to this question often hinges on whether the communication was for personal or business use. Regardless of social media’s relevancy or discoverability, how do you preserve the data so that the analysis can take place?

 

Preservation of the Data

Facebook allows users to download their information through a process that captures everything a person has ever posted on Facebook. This process does not capture deleted material but is a first step in preserving Facebook postings. To capture data posted on other websites that do not have this capability and to recover material deleted from Facebook, contact and inform the service provider about your litigation hold. If you want to make sure an opposing counsel is properly preserving data, you may want to serve a third party subpoena on the relevant social media companies. Third party social network sites often will oppose a third party subpoena based on the objection that to produce the requested material would violate the Stored Wire and Electronic Communications Privacy Act (SCA). The SCA was enacted in 1986 prior to the advent of social media sites, and its application is being challenged in many discovery disputes.

Attorneys should be sure to follow the proper procedures to access social media data. Counsel must be aware that searching social networking sites for evidence, in some circumstances, can violate ethical requirements. Most courts agree that if an opposing litigant posts information on an Internet site with public access, lawyers are free to read or access that information. The Oregon State Bar Association addressed this situation and determined that it would be akin to “reading a magazine article written by their adversary . . . not communicating with the represented owner of the website.” However, where the information is contained on a private profile and an attorney has to “friend” the opposing litigant in order to view the information in question, the friend request would be an improper communication with a party represented by counsel.

 

Social Media Data as Evidence

Attorneys should advise their clients to refrain from disclosing any information about a pending lawsuit on a social media website and remind them about the public’s access to those postings. Because people post all types of information on their social media sites, it is important for counsel to include a request for social media information in discovery requests and, when necessary, issue litigation hold notices to opposing parties and third parties who may have relevant information. The information discovered can at times be case-changing. For example, in a divorce action, a Manhattan belly dancer was awarded her marital home and $850 a month for life from her ex-husband following her claims that a 1997 car accident left her too injured to work. But the divorced couple was still friends on Facebook. When the ex-husband and his attorney discovered numerous posts and pictures on the social media site demonstrating that the woman remained an accomplished dancer, a judge reversed the award.

 

Conclusion

In the context of litigation preparation, attorneys must discuss the existence and preservation of any social media that is relevant to the action. As described above, social media postings can become case-changing evidence, subject to discovery. More importantly, counsel should advise their clients against posting or discussing anything relating to the lawsuit—during its course and well after resolution. As with any discovery process, it makes sense to meet with opposing counsel, discuss the scope of production of social media evidence, and set ground rules before production begins.

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