February 14, 2019 Articles

Tweets: Who Has Possession, Custody, or Control?

Examining the implications of Shenwick v. Twitter.

By Sumera Khan

The importance to daily life of social media and other non-email forms of electronic communication (e.g., text messaging, Twitter, e-collaboration spaces, and blogs) is impossible to ignore. Not surprisingly, as people communicate and store information using these technologies, social media sites are increasingly becoming the focus of discovery. In fact, the prominence of social media may lead to a rebalancing of discovery in asymmetric cases, where individual plaintiffs traditionally had an advantage over larger corporate defendants because the individuals had little discovery burden. Now, almost every plaintiff will have significant traffic, both on these social media sites and within their personal email; and how and whether to request these materials should be considered in your cases.

As a threshold and first question, both parties and courts struggle with what legal framework applies to these electronic communications and just what constitutes possession, custody, or control. In a recent case, Shenwick v. Twitter, Magistrate Judge Sallie Kim was asked to settle a number of discovery disputes between the parties, one of which was the plaintiffs’ request that defendant Twitter search its employees’ direct messages for relevant communications. At the heart of that question was a determination of who had possession, custody, or control of those direct messages. No. 16-CV-05314, 2018 WL 833085 (N.D. Cal. Feb. 7, 2018).

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