Social Media and Electronic Discovery
By Dorothy R. Bean
Saalfeld Griggs PC
Businesses are using social media outlets with increasing frequency as a means for marketing, and communicating with current and potential customers. Social media allows businesses to reach masses of people in relatively short periods of time, and with relatively little expense. The most common social media outlets include Facebook, LinkedIn, and Twitter. In addition, businesses continue to use websites and blogs as a tool for social interaction with prospective business contacts. However, every business owner should be aware that the same tools that allow them to reach hundreds and thousands of people with the click of a mouse can have significant impacts on their company in the event of a lawsuit or other legal dispute. This article explores the various social media outlets available to businesses, and the potential use of this information in the litigation setting.
After a lawsuit is filed, the opposing parties engage in the “discovery” of information in the possession of their adversary that may be relevant to the issues in the case. Although adverse parties have sought “electronically stored information” (“ESI”) for many years, until only recently, the ESI obtained was typically limited to email communications and information stored solely on computer databases. As a general rule, all ESI is discoverable if relevant and reasonably accessible. Given the increased use of electronic communications in day to day business operations, ESI is almost always relevant, and can sometimes make or break a case. All too often the outcome of a case is significantly impacted by a “smoking gun” email that came to light during the discovery process.
More recently, the practical definition of ESI has been expanded to include information shared through social media outlets, including Facebook, LinkedIn, Twitter, MySpace, blogs, and “Wikis” (such as Wikipedia or Wikileaks), to name a few. Given that electronic discovery of social media is a relatively new concept, there are differences of opinion throughout the courts about the extent to which adverse parties can discover social media information. For instance, whether the posts of an employee, manager, and business owner are discoverable remains an open question, and is likely to be determined on a case-by-case basis.
Not only does the recent social media phenomenon drastically increase the amount of information that may be subject to discovery, it also allows the requesting party to discover minor, intimate details about an event or person that traditionally would not have come to light. Furthermore, because an update, posting, or other similar communication is more instantaneous and less formal than a letter or email, a party may not even recall having posted it. And even if they do recall, the implications may not be realized until long after the fact. Just remember, as with deleted emails, if you post something on a social media site, it may be recovered, regardless of when it was posted, whether it was deleted, or how many times it has been changed.
Once a lawsuit is filed, each party is required to affirmatively take action to preserve and prevent the deletion of ESI. Failing to produce social media information can lead to steep fines, or even jail time for intentional or known concealment of such information. Federal courts require litigants to have a mechanism in place to store and access this information. Oregon courts have not yet addressed these issues, but failure to produce relevant social media information in Oregon may lead to similar fines and sanctions.
The moral of the story is, before posting information on a social media feed, one should take a step back and analyze whether dissemination of the information is necessary, and whether it could potentially create unintended detrimental results if the company is ever engaged in litigation. If you have any questions relating to this article, please contact Dorothy Ryan or another member of the firm’s Litigation Group.