Last week I attended the ABA National Institute on E-Discovery in New York. Here is part one of my summary of some key insights from the conference:
- Use of Social Media by Company Employees: When companies allow their employees to access social media websites from corporate computers and information regarding company business is posted on such sites (sometimes in violation of company policy), that can present significant problems when such information is requested in discovery. The recommendation of one of the panelists was that companies should prohibit access from corporate computers and posting of corporate information by employees. But it was also reported that some companies are allowing access and even forming their own internal “social media” intranet sites where employees can have online conversations, conduct seminars, create groups, etc. That can sometimes present challenges for implementing litigation holds and preserving and collecting data from these sites when required in litigation.
- Obtaining Social Media Discovery from Plaintiffs: This can potentially be a fertile ground for discovery from named plaintiffs in putative class actions (but keep in mind that this may spark requests for such information from the defendant, depending on what the company’s policy is regarding employee access to and use of such sites). Magistrate Judge Kristen Mix of the District of Colorado gave a very thorough presentation on this subject. She explained that Facebook tends to fight civil subpoenas, based on the Stored Communications Act and Electronic Communications Privacy Act, although courts sometimes order compliance. Facebook’s formal written policy is somewhat vague regarding its response to subpoenas:
Responding to legal requests and preventing harm
We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.
While Facebook reportedly tends to fight civil subpoenas, it provides a “button” whereby a user can download his or her entire content for purposes of responding to discovery requests (or other purposes). Requesting that the opposing party do this in a document request and if necessary seeking a court order requiring them to download the content themselves is often a more expeditious route than serving a subpoena on Facebook. But there can be technical issues – sometimes the “button” will not work effectively for users that post a large amount of content on Facebook. There also could be concerns about material being deleted by the user, which may or may not be retained by Facebook. Judge Mix emphasized that many judges are not that familiar with social media sites and how they work because, to avoid any appearance of impropriety in becoming “friends” with lawyers and others, many judges tend to eschew entirely participation in these sites. That makes it important to explain these things thoroughly in discovery hearings and any motion practice, and not assume the judge knows the basics of how social media sites work.