For many lawyers, eDiscovery is still an exotic, unfamiliar practice. Despite the growing number of conferences, publications, and CLE credits available to help lawyers understand the discovery of electronic evidence in litigation, most lawyers have never even sent a preservation letter, the first step in discovery.
Considering that discovery of any electronic evidence is unfamiliar to most lawyers, social media eDiscovery might seem like an extreme, cutting edge, fringe corner of the law. However, the courts are making it clear that when acquiring evidence for litigation, it’s really nothing special–even a little boring.
Nothing to Freak Out About
The recent ruling in Danielle Mailhoit v. Home Depot U.S.A, Inc.(C.D. Ca. Sept. 7, 2012) involved a battle over the discovery of social media content in an ongoing employment dispute. Home Depot requested, “profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites … that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff.” If that seems overly broad, the court agreed and denied most of the request.
However, the Home Depot attorneys did craft part of their request a little more narrowly and in line with existing case law and the Federal Rules of Civil Procedure. In particular, the attorneys requested communications about the lawsuit between the plaintiff and other employees that the court ruled was, “reasonably calculated to lead to the discovery of admissible evidence.”
In making this limited ruling, the court noted that the more limited request was in keeping with the eDiscovery principles enacted in the 2006 updates to the Federal Rules of Evidence. Basically, the court underscored the fact that social media information is discoverable under the exact same discovery framework as any other type of media. If you’re trying to understand eDsicovery demands, don’t be put off by social media eDiscovery – embrace it and apply the same standards as you would to any other discoverable type of evidence.
Well, Not Completely Boring
However, do note that social media evidence does demand special attention in litigation. In particular:
- Screenshots of social media are not sufficient. Social media files consist of more than just posts. Related links, videos, embedded files, etc. are part of the record. Archiving just the post is akin to saving an email without the attachment.
- Metadata is also an important part of the social media record and has proven to be instrumental to establish authentication and admissibility. Examples include geolocation, creation time, device used, etc.
- Discovery requests should never require password exchanges or third-party access.
- The unique public or semi-public nature of social media also means data can be collected without formal discovery
So while the law regarding social media ediscovery is pretty straightforward, lawyers do need to understand the intricacies and subtleties of the technology in order to comply with discovery requests effectively. For more information on the discovery of social media, you can see the Nextpoint white paper on social media ediscovery. But the bottom line is that lawyers should never assume that social media is somehow outside the scope of existing eDiscovery law.