eDiscovery 101 - Are social media accounts “discoverable”?
Though social media and website posts are only one form of ESI party to eDiscovery standards and evidence, they are becoming increasingly more common, powerful and important. Going back as far as 2002 in Rowe Entertainment Inc v. The William Morris Agency, the judges found that “Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer-stored information is discoverable under the same rules that pertain to tangible, written materials.” Recent case law has explored this niche form of social media evidence further and its current standing the eDiscovery process- slowly becoming the ”new normal” in eDiscovery.
One of the first eDiscovery cases involving social media was Crispin v. Christian Audigier, Inc., . In an attempt to quash the defendant’s subpoenas for content from Facebook and MySpace, the plaintiff claimed the Stored Communications Act (SCA) prohibits third-party Internet Service Providers from disclosing such communications. The court quashed subpoenas on private messaging elements, but found that content on the plaintiff’s Facebook and MySpace profiles were not strictly private and so subject to privacy settings were discoverable.
In Thompson v Autoliv ASP, Inc, the court ordered the plaintiff to provide all information from her social media accounts, including Facebook and MySpace, from a staggering five years previous so that the opposing counsel could search for, identify and collect “discoverable” materials, finding that content on social media was deemed as such.
In Painter v. Atwood, the could found the plaintiff accountable and liable for the deletion of Facebook posts that were party to the proceedings. The deletion of social media content in this context would deemed Spoliation of evidence and so the plaintiff was subsequently sanctioned.
Social media content is being used as evidence across the legal sphere; from insurance to divorce to murder and fraud cases, often providing a powerful form of circumstantial evidence, sometimes disproving witness statements and providing an additional insight the life of an individual not displayed through other evidence.
Taking from this brief overview, it is good to keep in mind:
- Relevancy in content produced plays a key issue, balancing interests such as privacy to the context of the case.
- Proving authenticity of all social media and website evidence is essential (Rule 901, Federal Rules of Evidence)
- Content is discoverable when it not unreasonably or unduly burdensome on the other party - TAR, legal and eDiscovery technology is therefore worth investing in.
- Legal professionals must be aware of their duty to understand the evidentiary importance of social media content, the necessity to preserve them and duty to be technologically competent in doing so.