October 27, 2011 Articles

Litigation Holds, Social Media, and Employees' Online Data

Lawyers and courts will be increasingly faced with the challenge of addressing whether, and to what extent, social media "documents" must be incorporated into the discovery process in individual cases.

By Patricia Eastwood, John D. Rue, and Peter Wilhelm

Just as the legal community has begun to adjust to the “new” e-discovery rules governing the discovery of electronically stored information (ESI) incorporated into the Federal Rules of Civil Procedure at the end of 2006, social media websites have led to yet another revolution in how people communicate and how businesses market their products and services. In much the same way that the 1990s saw the speed and convenience of email reduce the commonplace use of written letters and memoranda to formal circumstances, the rise of social media in the early 21st century (along with text messages and instant messaging) has forced much email communication to the sidelines. Everyday electronic communication today is increasingly expressed via social media providers because they permit users to instantly and informally communicate to thousands or even millions of people. As the means for such instant and far-reaching communication are now readily available and being adopted at exponential rates, lawyers and courts will be increasingly faced with the challenge of addressing whether, and to what extent, social media “documents” must be incorporated into the discovery process in individual cases. While production decisions relating to social-media documents may not be significantly different from the analysis of other ESI, the sheer volume of information generated by social media raises new questions about the scope of the preservation obligation.

Even in light of the volume, however, it is not the number of social-media documents that should give the legal community pause; lawyers have already learned to collect, cull, process, review and produce quantities of electronic documents that previously would have seemed preposterously large. But social media poses new preservation concerns precisely because of its “social” nature. That is, rather than a series of discrete communications (as with email), social media documents are often collaborative (created by a number of “authors”) and communal (the “ownership” of such documents is sometimes far from clear). The very allure of social-media websites is that the “creator” or “owner” of the content can open it up to a large number of “friends” or “followers,” dramatically broadening the distribution and the number of potential “authors” of a document. While a social-media document such as a Facebook page (analogous to a personal webpage, but one that can be altered in some ways by the account holders’ “friends”) has a nominal “creator” or “owner,” that person does not necessarily have complete control over the content of the document. Moreover, another social-media outlet, Twitter (which permits the sending of “tweets” to one’s “followers,” who sometimes number in the millions), prohibits by its terms of service the automated export of tweets. See Twitter Terms of Service (last visited June 2, 2011). These circumstances could pose a problem for litigants under an obligation to preserve relevant documents in their “possession, custody or control” because, in the social-media context, “control” (the least exacting of these three standards and thus the one most frequently examined by courts) is increasingly a relative term.

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