October 27, 2011 Articles

Avoiding Minefields Associated with Discoverability of Social Media

According to conventional wisdom, the law typically lags about five years behind new technology. In today's rapidly changing world, that rule of thumb might be too generous.

By Damon Thayer and Nayiri Keosseian

According to conventional wisdom, the law typically lags about five years behind new technology. In today’s rapidly changing world, that rule of thumb might be too generous. Five years ago, courts were still struggling with the extent to which emails and other electronically stored information (ESI) were discoverable. Although they showed up late to the party, courts have slowly but surely crafted a workable framework that provides parties with the tools they need to determine their preservation and production obligations related to traditional ESI. When it comes to today’s technology, however, courts have barely skimmed the surface. Whether people are using Facebook, Twitter, LinkedIn, Google+, YouTube, Flickr, blogs, or one of the thousands of other available platforms, social media have now surpassed email as the primary mode of communication. This trend does not apply just to individuals. A substantial chunk of business is now conducted via social media, and this phenomenon grows every day. Unfortunately, to use Facebook parlance, not everyone is clicking the “like” button. For parties embroiled in litigation, social media can present a headache.

Not surprisingly, litigants seeking practical guidance regarding how e-discovery law applies to social media have largely come up empty-handed. Notwithstanding this fact, parties must take steps now to prepare themselves for the possibility of future preservation and production obligations, lest they risk becoming another statistic in the recent wave of record-breaking sanctions for e-discovery violations. A patchwork of decisions from across the United States (and some from Canada) make up the “law”—if it can be called that yet—on the discoverability of social media. Although there are numerous gaps left for courts to fill, several decisions are instructive concerning a host of discovery issues that parties commonly face when dealing with social media.

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