Contributed by Steven W. Green, Hudson Legal
- As corporate social content increases, so will the challenges that corporate litigants face in producing and reviewing data stored with social media providers.
- The key social media challenge in electronic discovery is to collect and prepare social media content for review, production, and presentation in a way that preserves its original context and significance.
- Corporations must prepare and strategize for the discovery implications of this emerging social media world.
Corporate demand for assistance in dealing with the high costs and complexities of discovery in the digital age has given rise to an entire e-discovery industry. As business information shifted from paper documents and correspondence to stored data and electronic mail, the volume of corporations’ potential evidence rapidly increased. Tools, technologies, and methods have been, and continue to be developed to help assess the relevance of electronic data, and most advancements have been designed to grapple with enormous quantities of email.
Social media is now widely considered to be overtaking email as the primary means of electronic communication. While this appears to be the case for personal communication, it remains to be seen whether business communication will follow suit. If it does, technological and workflow approaches to each phase of the current e-discovery model will need to evolve to ensure social media content is properly preserved, collected, reviewed, and produced in satisfaction of discovery obligations.
Minimal Corporate Risk So Far
SharePoint and a number of services under the umbrella of “Enterprise 2.0” contain social-like features, but are generally controlled or hosted by the user corporation. Assume that by social content we are referring to environments such as Facebook, Twitter, and blogs – areas where interaction is not restricted to a private corporate network.
There have already been a surprising number of court decisions related to discovery of social media content. However, a distinct pattern is clear: these cases deal with individual-oriented litigation such as personal injury. Where a corporation is involved, it is the party requesting social media information from an individual, usually to refute a claim about the individual’s physical condition or state of mind.
It’s unlikely that a “smoking gun” piece of evidence relevant to high-value corporate litigation will turn up in a social media posting. Corporations and their key employees generally understand social media environments to be public spaces, and are not using them to communicate company secrets. Corporate social content is typically for marketing purposes and intentionally public. While risks to corporations may be minimal now, as social media adapts to serve more business uses, it will become more relevant to e-discovery.
Requests for Production, and Potential Objections
In making a request for the production of social media content, or as the recipient of such a request, consider at a minimum the Stored Communications Act, the availability of public information, and how courts have viewed relevance of social media content in previous case law.
The Stored Communications Act (SCA), 18 U.S.C. §§ 2710 et seq., prohibits electronic communication and remote computing (including remote storage) providers from divulging the contents of its users’ communications and data. The statute was enacted in 1986, prior to the World Wide Web and widespread use of the internet, yet through interpretation it still remains highly relevant today. In Crispin v. Christian Audigier, Inc., the court held that the act is applicable to social media sites and service providers, preventing direct third-party discovery of the social networking sites Facebook and MySpace. Such a request must be served on the party at issue, who must then arrange to collect and produce the information stored on the social networking site. Litigants should be aware that they can successfully move to quash third-party subpoenas seeking profile contents or other communications stored on these sites, but that they may be required to produce such information themselves. The SCA does not protect the information from production; it just prevents the social networking sites from being the party responsible for delivering it.
Much of the information conveyed through and stored on social media sites is public. Most Twitter feeds, blogs, and non-protected profiles on major social sites reside in plain view. Requests for such publicly-available content may be objectionable under F.R.C.P. 26(b)(2)(C)(i), which states that discovery is limited when it “can be obtained from some other source that is more convenient, less burdensome, or less expensive”. For example, downloading a party’s public Twitter feed may be just as easy for the requesting party as the feed owner. In Barclay v. Pawlak, a court refused to order sanctions against a party who failed to produce public blog entries.
In fact, the net effect of widespread social media use may actually be a diminished need for document discovery in many cases. There are a number of examples in the case law where a party used publicly-available profile information as key evidence. In Paltalk Holdings, Inc. v. Sony Computer Entm’t Am., Inc., the plaintiff used LinkedIn to gather information about potential witnesses and sources of documentary evidence where defendants failed to provide meaningful discovery. In B.M. v. D.M., a divorce case, a wife’s public social media postings about her participation in rigorous belly dancing were used by her husband to support claims that she was physically capable of working.
In other cases, publicly-available portions of social media profiles have been used to support arguments that further discovery of social media content is likely to yield relevant evidence. In Romano v. Steelcase, a New York court permitted discovery of the private portions of Plaintiff’s social media profile, where photographs in the public portions of her profile refuted claims regarding the severity of her injuries. The court held that based on what was available publicly more relevant information was likely present in the private portions of the profile, and that the defendants’ need for access outweighed any privacy concerns.
Under no circumstances should a litigant believe that the “private” nature of a social media profile affords any protection whatsoever from discovery. In EEOC v. Simply Storage Mgmt., this argument was soundly rejected: “[Social Networking Site] content is not shielded from discovery simply because it is ‘locked’ or ‘private’….[it] must be produced when it is relevant to a claim or defense in the case.” 
Impact on each step of the E-discovery Process
The Electronic Discovery Reference Model (EDRM) describes the process from information management through collection, review, and production, all the way to presentation at trial.
Commonly accepted by the industry as representing the components of e-discovery, it’s a useful starting point for examining how and where social media use may have an impact.
Information Management, Identification, and Preservation
In Young v. Facebook,  the plaintiff moved the court to specifically order that defendants preserve a page on Facebook, fearing that it would be deleted. The court denied the motion, finding no extraordinary circumstances, and stating that the: “duty to preserve evidence that [civil litigants] know is relevant or reasonably could lead to the discovery of admissible evidence… backed by the court’s power to impose sanctions for the destruction of such evidence, is sufficient in most cases to secure the preservation of relevant evidence.”
Failing to preserve relevant evidence once litigation is foreseeable is a sanctionable offense. Corporations must take steps to preserve social media evidence just as they must with email.
Social media, however creates specific challenges around controlling the retention and preservation of content. Data is generally outside of corporate control and, unlike typical cloud storage arrangements, it is subject to the retention policies of the social media service provider. This has given rise to the development of tools and services specifically for social media archiving, which should be considered alongside corporate email archiving solutions.
Collection and Processing
As with cloud computing applications, collection from social media sites raises the problem of collecting data from remote storage. Collecting in such a manner as to preserve all relevant parts of the evidence is already a challenge for companies when pulling data from sources under its own control. These problems are exacerbated when data is stored on servers outside of a company’s control, and co-mingled with third-party information.
For social media service providers, a key goal must be to allow users to comply with their discovery obligations without interfering with the normal operation of their services for all other users. Facebook and Google have both taken steps to assist in data collection from their sites. Facebook’s “Download Your Information” feature allows the user to automatically collect all information about them currently stored on Facebook’s site, and sends it to the user in a packaged zip file. Google has dedicated a team called the “Data Liberation Front” to ensure that information Google stores in its services and applications can be easily extracted by its users, and provides a website with detailed instructions for collecting this information from all Google services.
Processing data for review and production requires the ability to render the native information in a form suitable for review and submission into evidence, while preserving all of the information available in its native format. In e-discovery, descriptive metadata with details about a document (i.e., author, recipient, date sent, etc.) is typically extracted from electronic documents or their native environments and produced alongside the documents. For social media, telling the whole story of a posting’s native context may require the development of new types of metadata fields which effectively describe that context.
Processing data from native social media sources may pose a challenge for e-discovery companies, who will likely need to adapt their software to handle new file types. Fortunately most social media content is text-based, sometimes with embedded images or audiovisual content. The key in processing will be to prepare it for review, production, and presentation in a way that preserves its original context and significance.
Review and Analysis
Documents are typically reviewed by attorneys prior to production to ensure their relevance and to avoid the production of privileged information. To conduct this review effectively, the material should be reviewed in context. Review tools currently rely on three types of relationships to help provide this context for “traditional” electronic documents: (1) Family Relationships — email and attachment, (2) Similarity Relationships — duplicate and near-duplicate files, and (3) Thread Relationships — email conversation.
Social media “document” relationships can be more complicated, including more conversation types, wall posts, re-tweets, location data, contact groupings, etc. A lot of new information is needed to tell the whole story. An “activity stream” presentation of social media content within a review tool would probably be the most effective way to re-produce a timeline. Review tools are currently designed primarily for email, and must adapt to effectively handle social media content.
One feature currently available on some e-discovery platforms is a graphical “social mapping” of individuals based on their email conversations. These interfaces show the relative strength of relationships based on frequency of communications or likely relevance of communications between any two individuals. Such tools could be very useful for the analysis of social media content as well.
Production and Presentation
Producing social content in a way that reproduces its native environment is difficult. In some cases, courts have even ordered parties to turn over their login information to opposing litigants, persuaded that this was an effective means of production.  While it’s unlikely this will become the standard, attorneys should still be wary of this precedent and take steps to avoid surrendering access to their clients’ social media accounts.
In other cases, parties have requested that the court review social media content in camera and decide on which portions of the information required production. This line of cases likely stems from Flagg v. City of Detroit,  in which a court took this approach for a collection of text messages. In Bass v. Miss Porter’s Sch., the court itself produced the plaintiff’s entire Facebook profile after a quick review. In Zimmerman, the approach was rejected as placing an unfair burden on the court. In Offenback v. L.M. Bowman, Inc.,  the court ordered a partial production based on its in camera review, but admonished the plaintiff for not reviewing it and producing the relevant portions. Expect this to be the trend in production, courts will expect internal review and production of relevant portions of content, just as with any other electronic documents.
Google Plus and the Future of Social Media
Today, social media content is primarily used for socializing and marketing, and has questionable relevance to e-discovery in high value corporate litigation. However, new social media platforms such as Google Plus offer some insight into what may be coming for social, and why corporations should begin to prepare for this change now.
Google Plus has a key differentiator in its provision for walled-off private areas, restricted to a selected group of people. Corporations may seize this opportunity to use this “private” area of the larger site for business communication and collaboration. As internal business communications begin to take place in environments where the enterprise has limited control, the need for relevant discovery within social media services will increase. It will only become more complicated as corporate social content becomes intertwined with personal content on sites like Google Plus.
Another promise of Google Plus is to offer deep integration between its social features and the web generally. If it is effective in achieving this goal, potential sources of evidence could be found in many more places – anywhere a user recommends or visits a Corporate Counsel site on the internet. As the web becomes less distinguishable from its users, effective discovery of social content may require more than downloading information from a few sites. Corporations must begin to strategize for the discovery implications of this emerging world.
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 See e.g., Piccolo v. Paterson, Case No. 2009-04979 (Pa. Ct of Common Pleas May 5, 2011); Zimmerman v. Weis Markets, Inc., Case No. CV-09-1535 (Pa. Ct of Common Pleas May 19, 2011); McMillen v. Hummingbird Speedway, Inc., Case No. 110-2010 CD (Pa. Ct of Common Pleas Sept. 9, 2010); Romano v. Steelcase, 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010). See also e.g., EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind. 2010); Muniz v. UPS, Case No. C-09-01987-CW (N.D. Cal. Jan 28, 2011); Burdine v. Covidien, Case No. 1:10-cv-00194 (Feb. 11, 2011) (workplace discrimination or harassment); and Bass v. Miss Porter’s Sch., Case No. 3:08cv1807 (JBA) (D. Conn. Oct. 27, 2009) (school bullying).
 717 F. Supp. 2d 965 (C.D. Cal. 2010).
 Case No. 3:09-cv-722 (D. Conn. Apr. 6, 2010).
 Case No. 2:09-CV-274-DF-CE (E.D. Tex. Sept. 3, 2010).
 31 Misc 3d 1211(A) (N.Y. Sup. Ct. Apr. 7, 2011).
 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).
 270 F.R.D. 430 (S.D. Ind. 2010).
 Id. at 434.
 Case No. 5:10-cv-03579-JF/PVT (N.D. Cal. Sept. 13, 2010).
 See Pension Comm. v. Banc of America Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010).
 See Zimmerman v. Weis Markets; McMillen v. Hummingbird Speedway.
 252 F.R.D. 346 (E.D. Mich. 2008).
 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011).
© 2011 Bloomberg Finance L.P. Originally published by Bloomberg Finance L.P. Reprinted with permission. The opinions expressed are those of the author.