Courts have made it clear that social media may be subject to pre-trial discovery. But judges aren't inclined to grant blanket access to social medial accounts just so litigants can engage in a fishing expedition. Instead they require proof that a site is likely to contain relevant material. Here's an overview of the e-discovery rules and potential challenges that social media presents in a litigation setting.
Discovery Basics
In every lawsuit, there's a period when each party can obtain and examine the other party's information, documents and pre-trial testimony. Throughout this process, the parties must adhere to strict rules. Attorneys gather evidence by taking testimony from witnesses and examining physical evidence and relevant documents.
In the past, documents were primarily paper. But today, they're just as likely to be electronic — such as texts, emails, website pages and social media posts.
People generally use social media to communicate with friends and family. Businesses also use it as a low-cost marketing tool. But what's posted — including tweets, blog posts, pictures, timelines and comments — may come back to haunt users in a lawsuit. (See "Oops! Be Careful How You Use Social Media" below.)
E-Discovery Rules
E-discovery deals with electronically stored information (ESI). This includes data stored on computers, mobile devices, networks, backup systems and other storage media. The Federal Rules of Civil Procedure specifically address ESI and provide protocols for how each party must produce documents. The rules allow for sanctions if parties are uncooperative and also consider ESI subject to subpoenas.
There may be safe harbors when electronic evidence is lost and unrecoverable as a matter of regular business processes. If data loss doesn't occur in the normal course of business, however, the party could be subject to sanctions.
Unique Challenges
Social media presents special legal challenges in discovery. Consider these examples:
- If a company allows its workers to access social media accounts on company computers during their lunch breaks, does the employer have the right to monitor that activity?
- If an employee saves his or her username and password on a company-owned device, does the employer have the legal authority or practical ability to access the employee's social media data?
- Who legally controls data stored on personal devices that are subject to the company's bring-your-own-device policy?
Many people mistakenly believe that social media posts are private. But Facebook's homepage says that the site helps users "connect with friends and the world around you." Even if an individual's posts are private — that is, accessible only to approved contacts — the person is still sharing the posted information with outsiders. As a result, it may be discoverable.
Although courts may not buy the right-to-privacy argument, they generally don't honor blanket requests to access an entire social media account either. The party requesting access to social media content generally must prove a legitimate basis for needing the specific data.
Follow the Rules
In general, social media content is fair game in discovery, but relevance is the name of the game. Attorneys who request specific social media posts are more likely to be granted access by the courts than those who file broad, nonspecific requests. However, as with any form of ESI, everyone must play by federal and state rules of procedure.
Oops! Be Careful How You Use Social Media
Nowadays, most people use social media to connect with friends, neighbors and relatives. Some people also use it to share common interests and ideas — such as recipes, craft projects and travel tips — as well as a sounding board for social causes they believe in. But always think before you post.
Here are some ways that seemingly harmless social media posts have been used against people in court:
- Dwayne, a warehouse employee files a workers' compensation lawsuit against his employer for a back injury allegedly incurred while stocking shelves. A coworker tells the warehouse manager that Dwayne's Facebook profile lists dirt bike racing and snowboarding as his personal interests. The company asks the court for access to his profile and any pictures of the plaintiff posted six months before and after the injury for evidence that Dwayne engaged in high-risk personal activities that might have caused or aggravated his work-related injury.
- Karen, an administrative assistant, files a sexual harassment claim against her former boss (the company's CEO and co-owner) and requests access to his social media accounts during discovery. Karen specifically believes that her boss shared inappropriate photos of her with his contacts — including another co-owner — on Facebook and Instagram following the company's recent golf outing.
- A company's controller, Paul, is accused of stealing inventory and selling it online. The company requests access to his Instagram and Facebook accounts to search for evidence that he was living beyond his means. The plaintiff specifically requests access to posts made while the Paul was on a lavish trip to the Las Vegas strip. He allegedly bragged about his "swanky penthouse suite" and "blackjack binges."
The common denominator in these examples is that the party seeking access to the data is requesting specific information that could reasonably lead to the discovery of relevant, admissible evidence.
