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.

Rule 34 “Control”
Federal Rule of Civil Procedure 34 facially imposes obligations beyond those related to documents in the litigants’ actual possession and extends to those documents merely in a litigant’s “control.” Even outside the realm of e-discovery, the definition of “control” in the context of Rule 34 is somewhat unsettled. Some circuits limit the definition of control to those documents a party has a “legal right to obtain.” See, e.g., Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160-61 (3d Cir. 2004); In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); Searock v. Stripling, 736 F.2d 650 (11th Cir. 1984). Other circuits interpret “control” more expansively to also include those documents a litigant has a “practical ability to obtain.” See e.g., In re Flag Telecom Holds, Ltd. Sec. Litig., 236 F.R.D. 177, 181 (S.D.N.Y. 2006); In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007); cf. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007). When the rule was first enacted, issues of “control” were much clearer—but the electronic age put the definition to test in a variety of ways. For example, documents stored in the personal email account of a corporate employee are likely to be deemed to be in the control of the corporation, at least requiring the corporation to seek the employee’s cooperation in acquiring those documents. But despite the recent proliferation of communication via social media, courts have not yet had much occasion to directly address the issue of “control” as it relates to social media.

Despite the apparent lack of judicial guidance regarding social media’s discovery implications, case law addressing a litigant’s obligation to produce documents possessed or created by a third party can be instructive when considering scenarios involving social media. Courts have required litigants to produce bank records, Babaev v. Grossman (E.D.N.Y. Sept. 8, 2008) and cell-phone records, Tetra Tech. v. Hamilton (W.D. Okla. Aug. 7, 2008) created by third-party service providers. A court has also required a litigant to produce text messages even though the litigant had to retrieve copies of the text messages from the third-party service provider. Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008). Similarly, a court found that a litigant could not delegate its obligation to preserve relevant documents to a third-party service provider retained expressly for that function. Tomlinson v. El Paso Corp. (D. Colo. Aug. 31, 2007). Further, a litigant who is aware that a third party possesses relevant documents that it intends to destroy is under an obligation to disclose the possible destruction to the opposing party. Silvestri v. GM Corp., 271 F.3d 583, 591 (4th Cir. 2001). On the other hand, in at least one case, a litigant was not required to produce soil-chemical-test results actually possessed by a third-party testing company that the litigant had hired to perform the tests. Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420 (7th Cir. 1993).

Notably, in addition to “control,” to be discoverable under the federal rules, the documents in question must be likely to be relevant to the litigation, Rule 26(b)(1), which likelihood must be proportional to the burden on the producing party related to preservation and/or production. See Rule 26(b)(2)(C). (Obviously, real-life situations will not be as clear as the hypothetical below, which is intended to isolate the issue of control.) In many, if not most, cases, producing parties objecting to requests for social-media documents would probably argue that such documents are unlikely to be sufficiently relevant to the dispute to warrant the associated burden of incorporating them into the discovery process. See generally Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011); DFSB Kollective Co. v. Jenpoo, 2011 U.S. Dist. LEXIS 62163 (N.D. Cal. June 10, 2011).

To examine the issue of Rule 34 control to the discovery of social media, we present the following hypothetical factual scenario, which assumes that (i) the documents at issue are likely relevant to the litigation, and (ii) the likelihood of their relevance is proportional to the burden of preserving and/or producing them:

A dispute between XYZ Corp. and an employee (Johnson) is settled by means of an agreement containing a bilateral non-disclosure agreement. Johnson shortly thereafter posts to his Twitter account, “Looks like I’ve won the lottery! So long XYZ!!!” Johnson has linked his Twitter account and FriendMe (a new social-media website) pages such that all his “tweets” also appear in his FriendMe status updates. Many other XYZ employees see Johnson’s tweet or FriendMe messages, including Williams, his former manager, and a corporate officer, who quickly informs XYZ’s general counsel and the CEO.

Martinez, one of Johnson’s former colleagues, posts a “comment” to Johnson’s status update (which therefore appears on and alters ex-employee Johnson’s FriendMe page), which also appears on and alters Martinez’s page, stating, “I’m glad XYZ finally decided to do right by you!” Martinez also separately posts a tweet that says “Seems like XYZ is paying out—maybe I should get in line?” Neither Johnson, Williams, nor any other XYZ officers are aware of Martinez’s tweet.

Chang, another of Johnson’s former colleagues, posts a message to a LinkedIn discussion group informally organized by employees of XYZ (and with membership limited to current employees) stating, “Johnson’s tweet was old news. Everyone around here knew he was being paid to go away.” XYZ manager Williams sees Chang’s message to the LinkedIn group and duly informs the general counsel and the CEO. The CEO, who belongs to another LinkedIn group of executives in the widget industry (most from other companies), posts a request for advice to the group about the situation, and receives a number of responses.

XYZ refuses to honor the settlement on the basis that Johnson violated the nondisclosure agreement. Johnson sues XYZ for payment.

Johnson’s Twitter and FriendMe Content
After the lawsuit is filed, Johnson asks his attorney whether he has to preserve his FriendMe page (which is an ever-changing document) and any tweets (his own or those that he saw written by others, including any “re-tweets” of his tweets and “@” messages) related to his employment.

Rule 34 obligates Johnson to preserve his relevant posts to FriendMe and Twitter (again, assuming for the purposes of this hypothetical that all the content is potentially relevant and that such preservation is not unduly burdensome in the context of the likelihood of relevance). Moreover, he also probably must preserve the content that other people add to his FriendMe page and all potentially relevant tweets. Messages posted by others, either on Johnson’s FriendMe page (even if unsolicited) or in some way directed to Johnson (even indirectly) as a Twitter “follower,” could be analogized to emails or letters received in the mail. Such messages would therefore probably be deemed to be documents in Johnson’s “possession, custody, or control.” Cf. Qualcom Inc. v. Broadcom Corp. (S.D. Cal. Jan. 7, 2008).

Johnson’s obligation to preserve his Twitter and FriendMe content, however, may place a greater burden on him than would an obligation to preserve letters received in the mail or even emails, because social-media providers are not generally obliged to archive user content in the way that Johnson’s email account may simply collect old emails. Thus, Johnson may be obligated routinely to save a copy of his FriendMe page. This can be done by taking a screen shot, printing the page in hard copy, or downloading the electronic file using the FriendMe archive tool. Currently, he is probably permitted by Twitter’s terms of service to do the same with his Twitter account, using one of the many services available to perform a manual download. But the terms of service of such social-media services change regularly and should be considered at the time that the preservation obligation attaches.

Martinez’s FriendMe Page
XYZ asks its counsel whether it has any obligation to preserve documents relating to social-media interactions between or among its employees regarding the litigation.

Generally, for the purposes of Rule 34, a corporation is said to control documents created by the corporation’s employees in the course of the employee’s corporate duties. While Martinez’s FriendMe posts in response to Johnson’s message that he “won the lottery” were probably not part of her duties as an employee of XYZ, if Martinez posted the message from a computer owned by XYZ, then XYZ could be in possession of a copy of that post (e.g., in a cache file) and, if so, XYZ could (under an aggressive theory put forward by a requesting party) be under an affirmative obligation to preserve cache files. Cf. Columbia v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. June 19, 2007).

Even if no XYZ officer knows of Martinez’s social-media activities (i.e., posting on Johnson’s FriendMe page, and separately tweeting on the subject), the company must nonetheless take reasonable steps (considering both the likelihood of relevance and the attendant burden) to preserve potentially relevant documents, which may include documents reflecting the social-media activity of its employees, even if those activities are unknown to XYZ. Issuance of a sufficient litigation-hold notice to XYZ’s employees, properly instructing them that potentially relevant documents, including those documents related to communications sent via the Internet, whether by email or posting to a website, might be enough to satisfy XYZ’s obligation. In light of the astonishing rate of increase in the use of social media, prudence suggests that corporate litigants such as XYZ should consider whether litigation-hold notices should specifically mention (and perhaps highlight) documents created or sent using social media.

Chang’s Message to the LinkedIn Group for Corporation Employees
Chang posted a message to a LinkedIn group that was not created by XYZ, so it is not immediately apparent that XYZ has control of the group’s content. Nonetheless, the group is limited to employees of XYZ, so it is likely that issues regarding the workplace will at times be discussed in the group. More important, at least one officer of XYZ monitors its content, and that officer’s personal control of documents related to the group’s messages would likely be imputed to XYZ. See, e.g., ANZ Advanced Techs., LLC v. Bush Hog, LLC, 2011 U.S. Dist. LEXIS 22159 (S.D. Ala. Jan. 26, 2011) (citing cases). So XYZ would probably be obliged to preserve the related documents. Thus, XYZ should take reasonable steps to ensure that the documents related to this LinkedIn group are captured and preserved. As with FriendMe and Twitter content, this can likely be accomplished by regularly capturing the group’s content through screenshots or other archival form. Other automated solutions should also be considered.

The CEO’s Message to a LinkedIn Group and the Responses Received
The CEO used the LinkedIn group as a means of communication, and the circumstances of the communication are not appreciably different from an email chain. In fact, the CEO may well receive either email digests of the messages posted to the group, or individual emails for every message posted to the group. Thus, communications via a social-media website such as LinkedIn are just as discoverable (presuming relevance and proportionality, assumed here) as emails or paper documents reflecting potentially relevant communications, i.e., hard-copy correspondence. While the real-time nature of services such as LinkedIn may give related documents the feel of a live conversation, their permanence subjects them to federal discovery like any other document.

The exponential increase in communication via social media has greatly multiplied the factual scenarios of which lawyers must be aware when considering how to advise their clients with regard to Rule 34 compliance. These changes, however, will not necessarily be accompanied by statutory changes, as with the Zubulake-inspired revisions to the federal rules in 2006, but will more likely involve straightforward application of already settled legal principles to new factual scenarios. Counsel have an obligation to keep abreast of this rapidly evolving communication technology to anticipate the discovery pitfalls.

Keywords: litigation, pretrial practice and discovery, social media, Facebook, Twitter, Rule 34

Patricia Eastwood is a senior corporate counsel at Caterpillar Financial Services, and John D. Rue and Peter Wilhelm are associates in the New York, New York. offices of White & Case LLP. The above opinions are solely those of the authors, and not necessarily those of Caterpillar Financial Services, any of its affiliates or subsidiaries, or White & Case.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).