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).

    Background

    This case was a securities class action brought by individuals “who purchased or otherwise acquired [Twitter] stock” from February 6, 2015, to July 28, 2015. “Plaintiffs name[d] Twitter and two individuals as defendants.” Id. at *1. As you know, “Twitter is a social media company that provides a platform where any user can create a ‘tweet’ and any user can follow other users.” Id. (internal citation omitted). Plaintiffs alleged that Twitter and its former CEO and other executives violated securities laws by misleading investors, which resulted in artificially inflated stock.

    The parties exchanged discovery requests to determine whether the defendants made intentional efforts to conceal metrics that may have indicated growth in the market. In a letter brief, the parties raised several discovery disputes. In one, the plaintiffs requested that the defendants search Twitter direct messages that each designated custodian (employee) sent and received. A direct message is a private message through the Twitter platform. The defendants agreed to produce direct messages for the two individual defendants only and argued that the Stored Communications Act (SCA) prevented the disclosure of direct messages from anyone other than the named defendants. 18 U.S.C. § 2701 et seq.

    Court Ruling

    Magistrate Judge Kim agreed with the defendants and denied the motion to compel based on the SCA, ruling that, outside of the two individuals named as defendants, discovery of the defendants’ employees’ Twitter communications were protected by the SCA. Under the SCA, a third-party electronic communications service (ECS), such as Twitter, is prohibited from producing individuals’ electronic communications. Because the data in question involved direct messages sent within Twitter and the Twitter employees at issue were not named parties in this lawsuit, the communications were protected under the SCA.

    In her analysis, Magistrate Judge Kim made a distinction between compelling a party to produce information in its possession, custody, or control and compelling the party’s individual employees who were not named parties in the litigation and who were entitled to their own privacy. The court noted Twitter’s claim, which had not been disputed by the plaintiffs, that “it did not require its employees to use direct messages for communications.” Shenwick, 2018 WL 833085, at *2. On this basis, Magistrate Judge Kim determined that Twitter did not have possession, custody, or control over its employees’ personal Twitter communications; and, accordingly, “the Court cannot compel Twitter, a party in this litigation, to produce protected direct messages of individual custodians who are not parties simply because Twitter is also the provider of the direct messaging service.” Id.

    Lessons

    Magistrate Judge Kim’s decision not only provides further guidance to parties and courts in how to construe and apply the SCA, but it may also be used by corporate litigants to argue that they should not have to provide and produce any direct communications in discovery that are between employees where those employees are not named parties. This may apply, for example, in the context of employee text messaging. To the extent that such employees are not required to use this type of messaging for business communications, an extension of the Shenwick decision may be a strategic way for parties to limit discovery of social media documents.

    How far the ruling in Shenwick will be extended remains to be seen, but what is clear is that the framework that parties and courts use to construe who has possession, custody, or control likely needs to be revisited and revised as discovery of social media and non-email communications is becoming an emerging and prevalent trend.

    Sumera Khan is a senior associate in the Houston, Texas, office of Norton Rose Fulbright US LLP. 

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