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August 07, 2014 Articles

Tips for Young Lawyers: Privacy Issues in Discovery of Social Media

When pursuing discovery of social media, lawyers should keep in mind the evidence and ethics rules

by Angela M. Scafuri

According to Nielsen's annual State of the Media: The Social Media Report 2012, Americans spent 121 billion minutes on social media sites in July 2012. That amounts to approximately 388 minutes, or six and a half hours on social media, per person, if every person in the United States used social media. Surely, that number has only climbed over the past two years. Both individuals and businesses alike maintain social media accounts on Facebook, LinkedIn, and Twitter. Social media is different from traditional platforms in its immediacy, accessibility, and permanence. The purpose behind social media is to share content, instantaneously, with multiple individuals. As social media has become part of daily life, it comes as no surprise that there has been an increasing focus on social media as part of electronically stored information (ESI).

The discovery of social media is distinct in that it quite often raises privacy concerns. Adverse parties and witnesses often object to requests for production of posts and other data from their personal social media accounts for litigation purposes. Further issues arise when discovery is sought of privately posted material as opposed to material on social media sites that is publicly available. Social media, however, is subject to discovery as long as it is relevant and nonprivileged. The following tips will assist you in the discovery of social media ESI in litigation:

Does It Exist?
Decide early in the litigation whether relevant information exists on social media sites. In your evaluation, consider the costs to preserve, collect, review, and produce the social media. Decide early on whether social media should be part of the e-discovery process.

Online Research
Conduct a large sweep web search for public social media sites of adverse parties and witnesses. Quite often, individuals do not lock profiles or take advantage of their privacy settings, making postings, messages, and comments open to the public. Preserve the sites with date stamps. Keep in mind, however, that static screen shots may not be sufficient in some jurisdictions to authenticate the social media evidence. If the matter is significant enough, consider retaining an e-discovery vendor or technical expert to advise on technical access to social media and associated metadata, and to assist in any collection process.

How to Get That Facebook Account
If an individual's social media site is set to private, use discovery requests. Request all postings and messages that are related to and relevant in the litigation. Also, consider requesting an access waiver to social media sites that allows for complete access to the site. LinkedIn, for example, has a standard waiver located on its site. Ask for all social media identifications used by the adverse party in an interrogatory. Another discovery tool is to file a motion to compel the adverse party to sign an authorization allowing for the provider to disclose the social media ESI. An authorization, along with a proper subpoena, will allow for the release of the ESI in most instances.

What to Do When You Get an Objection
There is no special "social media" privilege. Relevancy should be the focus of whether the social media content is discoverable. Courts have made clear that social media is a proper source for discovery, but they do not allow fishing expeditions. If it looks like an uphill battle to obtain social media in a given case, it may be appropriate to request an in camera review by the court, or an "attorneys' eyes only" review to guard against overbroad disclosures of a party's social media information. See, e.g., EEOC v. Original Honeybaked Ham Co. of Ga., Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012). By requesting that the court review the social media ESI in camera, you can successfully gain access to the social media ESI that the court deems relevant while also preserving the party's private and unrelated content.

Remember your ethics rules. Do not "friend" or "follow" an adverse party or witness. Most state ethics boards do not allow lawyers to "friend" anyone to gain access to private profiles of individuals for information. See, e.g., N.Y. State Bar Ass'n Ethics Op. 843 (Sept. 10, 2010).

More Ethics
While the above tips provide guidance for the discovery of social media, young lawyers should be aware that social media presents different ethical challenges. For example, the Commercial and Federal Litigation Section of the New York State Bar Association recently enacted Social Media Ethics Guidelines to assist lawyers in understanding different ethical challenges presented by social media, including a lawyer's responsibility to be conversant with the nuances of social media that the lawyer or his or her client may use. These guidelines are useful to consider in any jurisdiction that may not presently offer such guidance on this fast-developing subject.

Keywords: confidentiality, e-discovery, ESI, ethics, Facebook, LinkedIn, privacy, social media

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