E-discovery Meets Social Media (and What it Means for Your Business)
A lot of jargon and new vocabulary is thrown around these days, especially in the area of the internet and social media. I am sure you could define social media in your sleep, but if you haven’t heard of the term e-discovery, I don’t blame you.
E-discovery is not only internet jargon, it’s legal jargon. According to CDSlegal.com, e-discovery or electronic discovery is a phase of legal proceedings that occurs before a trial, when electronically stored information (ESI) is identified, collected and produced “in response to a request for production in a law suit or investigation. ESI includes, but is not limited to, emails, documents, presentations, databases, voicemail, audio and video files, social media, and web sites.”[Emphasis added]
In other words, when lawyers or investigators are looking for evidence, they can ask you for your electronically stored documents and social media as well as your physical documents.
I’m a small business, what are my chances of getting into a law suit?
Good question! According to RocketLawyer.com “not everyone has the same type and level of risk.” Your personal level of risk depends on a variety of factors, such as exposure (like a store front), number of employees, number of contracts you sign (especially if they are long or complex), and even your success. “Competitors could file claims to slow your progress or disgruntled employees could make claims that aren’t valid. And valid or not–lawsuits aren’t cheap.”
No matter what your level of risk though, it only takes one mistake to give you a large legal headache.
Does this mean if I get sued they can ask for any electronic information? What about my right to privacy?
Not exactly. In order to request electronically stored information, that information needs to meet 2 criteria. It needs to be relevant to the case, and it needs to be under your “possession, custody or control”. Though these two requirements may seem like they can be answered quickly with common sense, the wording was created so it could be applied as new technology emerges, and is therefore somewhat up for interpretation.
Relevancy is the more obvious of the two conditions. The information must be “relevant to any party’s claim or defense” according to the Federal Rule of Civil Procedure 26(b), quoted in the article “Is Social Media Discoverable” by Jennifer Walrath. However, the article goes on to explain that even if information meets the threshold of being relevant, it cannot be requested in broad terms such as “All photographs or videos posted by [claimant]…” or “Electronic copies of [claimant’s] complete profile on Facebook and MySpace”. Instead, the request needs to be “targeted so that it is ‘reasonably calculated to lead to the discovery of admissible evidence.’” So as long as the information requested is relevant and the request is targeted, there is a good chance you will need to produce that information.
The issue of possession, custody or control is a bit more complicated since it depends on what kind of information is being requested and who has the ability to access or modify the information. In the second part of “Is Social Media Discoverable,” Walrath dives into this issue of control and how it affects social media:
When determining whether a party has possession, custody or control of potentially relevant social media, among other things, a court may consider: (1)whether the social media content resides on the party’s own Web server, or on a third party’s Web server; (2)whether the party has “the ultimate authority, and thus control, to add, delete or modify” the social media content; and (3)whether the party has “control over access” to the social media, such as the ability to “unilaterally block access.”
A social media user or owner can easily be considered in control of their own social media content, however, outside of this condition it can get a little hazier. Walrath explains, “at least one court has taken the view that a party may have to produce social media which it can access but cannot modify or delete.” Which means, for example, you may be required to produce photos posted of you by friends, which you can access.
As Walrath further explains, when dealing with employees’ social media accounts “At least one court has concluded that a corporation does not have control over relevant social media where the information is on a third party’s server and not accessible by the company.” However, if “an employer has access to material posted by an employee on an external social media website—such as a cache copy of social media activity on a company computer or on the company’s network server—then it is possible that the employer could be deemed in possession, custody or control of that social media and be required to preserve and produce it.” In other words, you may not have to produce any information from your employees’ personal social media accounts, but if they accessed those accounts on a company computer, you may need to preserve and produce any cache or record you have of it.
This need to preserve documents is called the “duty to preserve” and according to Margaret DiBianca of Business Law Today “is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. All evidence in a party’s ‘possession, custody, or control’ is subject to the duty to preserve.”
Just what kinds of lawsuits involve social media? I don’t run my business like an episode of Maury.
Social media is used in litigation in many different ways. It doesn’t have to be an especially dramatic case to warrant using social media as evidence or leverage.
“I regularly use Facebook postings as evidence of bona fide relationships in immigration cases.” Says attorney Meghan Abigail , “there is nothing like the added benefit of a public post with several “likes” from family and friends to show that they are holding themselves out to everyone they know as a real couple.”
You may not need to worry about immigration cases, but perhaps personal injury cases like the ones Tom Simeone deals with hit a little closer to home. In one case, a plaintiff claimed he had injuries that were preventing him from earning future income. “We went to Facebook and found photos of him on vacation engaging in several physically challenging activities,” said Simeone. “He testified under oath to his alleged physical limitations. We then let it be known that we had the photos – many of which were dated on Facebook.” This allowed Simeone to negotiate a lower settlement, a major advantage for his client.
In another case, Simeone represented a boy who had been attacked by a dog. “The owner of the pit bull wrote several entries on her Facebook page, including one where she recounted what happened and made some damaging admissions. When we sent a demand, we included the specific statements the owner made on Facebook as admissions.” No matter if you are the plaintiff suing, or the defendant being sued, social media can be used both for your case and against it. Because of the public nature of social media sites like Facebook and Twitter, content on both personal and corporate accounts can be used in court and negotiations.
“People are incredibly open with Twitter and Facebook, especially with regards to their legal situations,” says attorney John Keramaris. In an eviction case he was working, they discovered the defendant’s Facebook profile, on which the defendant threatened him and his client. “I printed out all of his colorful commentary, brought it with me to trial [and] presented all status updates to the Court. The Judge dismissed all of the Defendant’s counterclaims without hearing and commenced the trial.”
Social media can have a big impact on legal cases and negotiations, which is one reason they are a big part of e-discovery, but “social media does not require discovery at all in many instances,” says Simeone. “Instead, prior to suit, you can google someone’s name and find out all their public postings. Therefore, we do that for any adverse parties and advise our clients to remember that a statement on Facebook is there for the world to see.” Especially in the case of corporate Facebook and social media accounts where almost everything posted is public information, social media content can easily be gathered by either side’s attorney.
Don’t think deleting posts will help your case though; Attorney David Reischer of legaladvice.com uses an e-discovery tool to recover lost social media posts. “The defendant even deleted the posts but our e-discovery tool allowed us to retrieve the postings despite this fact. There are several companies that have similar tools that allow you to locate all social media postings made by an individual. A person should always be careful about the information they disclose on Twitter, Facebook, Yahoo, etc. and anywhere on the Internet for that matter.”
If you or your opponent does delete posts that are relevant to the case, you would be violating the duty to preserve mentioned earlier, for which there can be serious consequences.
So what does all this mean for me or my business?
Social Media is becoming a critical part of our day-to-day communications and because of this, will continue to become more and more important as evidence in our justice system.
If you anticipate any legal action to be taken by you or on you by someone else, it is important that you speak to your attorney as soon as possible so you can determine what social media (and other documents) might be relevant and what you need to preserve.
“Preserving” can mean anything from archiving or backing up information, to simply not deleting information (whether routine or not), to not changing information (such as your Facebook profile image). Failing to preserve relevant information can come at an expensive price.
In one extreme case, Lester v. Allied Concrete Co., Lester deleted some photos from his Facebook account after his attorney had a paralegal tell him to “clean up” his Facebook page. The court penalized both Lester and his attorney for spoliation of evidence a combined $722,000.
In another case, less extreme but still serious, mentioned in DiBianca’s article “Discovery and Preservation of Social Media Evidence,” “the court determined that the defendant committed technical spoliation when he changed his Facebook profile picture, where the picture at issue was alleged to show infringing trade dress. Because the defendant had ‘control’ over his Facebook page, he had the duty to preserve the photos.”
Since each case is unique and it can be difficult to determine exactly what ESI will be relevant to your individual situation, it is important to speak with a licensed attorney.
Please note: This post does not constitute legal advice and readers should not rely on it to solve individual problems.