A 2010 study estimated that nearly 65% of Fortune Global 100 companies maintain an active Twitter account, and nearly 54% have Facebook fan pages. As evidenced by these numbers, social media is playing an increasing role in today’s business environment. Unfortunately, the more a company uses social media, the more it has to preserve when it comes to litigation.
Any business involved in litigation is aware of the recent trends regarding preservation of electronically stored information (“ESI”). Under Fed. R. Civ. P. 34(a), ESI is discoverable if it is stored in any medium from which it can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. The definition of ESI was “intended to be read expansively to include all current and future electronic storage mediums.” See Notes of the Advisory Committee to the 2006 Amendments to Rule 34. This has been routinely interpreted by courts to include information stored by social media sites. Thus, as with other forms of relevant evidence and ESI, parties to litigation have a duty to preserve potentially relevant social media data.
The duty to preserve is triggered when a party “reasonably foresees” or “reasonably anticipates” that evidence may be needed in litigation (i.e. whether there is a known threat of litigation). Once this duty arises, the duty of preservation extends to all documents/information within a party’s possession, custody, or control. “Control” has been interpreted broadly to include data that a party has the legal right to obtain or the practical ability to access. However, determining control over social media data can be a difficult task. Although an individual may be able to look at his account on a social media platform, the actual information is stored and maintained on the social media provider’s servers. This makes it difficult, if not impossible, for the individual to access certain metadata needed to properly preserve the social media ESI.
A further challenge facing litigators is how does one determine “control” over an employee’s social media account? Regarding an account purely personal to the employee, an employer may have little to no authorization to access the social media account and, thus, would not possess the requisite degree of control to comply with the duty to preserve. In these cases, an employer should consider advising the employee of the duty to preserve the account information.
Once the duty is triggered, the party must take appropriate steps to ensure that the relevant social media information is preserved. The party must suspend all routine document retention and destruction policies and issue a written litigation “hold” instructing that all sources of relevant data be maintained in their current form. Issuing a hold notice may not be enough when dealing with social media evidence. Rather, it may be necessary to also collect the pertinent social media data in order to preserve it (this is because information changes frequently on social media sites, and downloading/otherwise collecting the information may be the only way to preserve it in its current state). If this is the case, the party should anticipate potential authentication issues later if used in court.
It is always wise to review the relevant social media provider’s policies regarding data preservation, collection, and subpoena responses. Both Facebook and Twitter have policies regarding responses to a subpoena. Also, Facebook has a “download your information” option that creates a file with all of a user’s account information including photos, wall posts, and messages.
For those who think that courts may not be technologically savvy enough to enforce ESI preservation and discovery rules, a 2010 study found that courts are increasingly imposing stronger sanctions on parties and their attorneys for failing to comply with relevant e-discovery rules. Defendants were sanctioned for violations nearly three times more often than plaintiffs, and the most frequently cited reason for imposing sanctions was failure to preserve electronic evidence. Preservation of social media data has become an important step in any litigation cycle. The following are some potential social media data preservation best practices:
- Counsel should encourage clients to update their document retention policies to include social media data. A company’s e-mail retention policy is likely a good model and can be easily applied to social media information.
- Identify a third-party vendor who can capture and store social media information.
- As soon as litigation is anticipated, clients should begin communicating with legal counsel regarding any relevant social media activity they engage in. This may include routine updates or posts made as a normal part of the business (e.g. on-going sales, product line updates that may be “tweeted” or “posted”).
- Counsel should include social media data in any relevant discovery requests.
- Consider preserving an opposing party’s social media data even if it is publicly available. A party can choose to send a preservation letter to the opposing party seeking relevant social media data so that they are put on notice.
- Counsel should come to an agreement with opposing counsel early on to preserve social media data (potentially as early as the Fed. R. Civ. P. 26(f) conference).
- Document the client’s retention policies, along with routine destruction protocols, so that in the event any ESI is accidentally deleted, the client can argue that it was an innocent mistake and avoid any negative inferences that are requested to be imposed by the court.