Preserving ESI on Twitter

Once litigation is “reasonably anticipated,” parties have an obligation to preserve all potentially relevant material.  That obligation extends to information reasonably under a party’s control, even if it is not actually in its possession.  This raises significant concerns when it comes to information on social media sites such as Facebook and Twitter—the information may well be relevant, should likely be preserved, but is it in the reasonable control of the party?  Some recent changes with Twitter reveal that the answer is yes—it is reasonably under the control of the party, and must be preserved.  Fortunately, Twitter also now provides an easy-to-use tool to preserve this information.

During one of Twitter’s quarterly “Hack Weeks”, employees engineered Twitter archiving, which allows users to access Tweets from their Twitter account past. On December 19, Twitter launched this new feature to a small group of users who have their account language setting on English.  It’s not yet clear whether this archiving feature will include “Direct Messages,” so attorneys should ensure that any such information is either captured or separately preserved.  It will be rolling out to all other users over the coming weeks and months, according to Mollie Vandor, part of Twitter’s User Services Engineering Team. 

Archiving allows users to access and download Tweets from the beginning of their account, including retweets.  After they have their account set up to access the archives, they can view Tweets by month, or search their archive based on certain words, phrases, hashtags, or @usernames, according to Vandor’s blog.

You might be wondering how you can access the archiving feature on your Twitter account.  After logging into your account, go to Settings, scroll down to the bottom, then check for the feature, which will allow you to access your Twitter archive.  Click on the button, and you will receive email instructions on how to access your archive once it is ready to download.

Some thoughts and potential best practices for attorneys:

-       -  Include Twitter usage in initial interviews with clients regarding ESI

-       -  Ensure clients are directed not to delete or modify their Twitter accounts in a litigation hold letter until such time as the account can be fully preserved

-      -   It’s not yet clear whether the archiving feature will include Direct Messages or lists of accounts followed by a specific user, so extra care should be taken to ensure this information is separately preserved if applicable

Discovery of Social Media Information: Privacy, Authentication, and Practice Tips

Last week’s blog post briefly discussed the evolution of FRCP 34 as it relates to the admissibility of electronic compilations of data for discovery purposes, and how social media, with its cache of potentially discoverable electronic information, has impacted the e-discovery process.  Generally speaking, the courts treat social media information the same as other electronic data obtained for discovery purposes.  However, social networking sites represent a new frontier for electronic discovery and bring with them a novel set of issues to be explored. 

Not only is the admissibility of ESI from social networking sites subject to application of the Federal Rules of Civil Procedure, evidentiary criteria for electronic data are further defined by the Federal Rules of Evidence (addressing such matters as relevance, authenticity, prohibition on hearsay, reliability, probative value, etc.). Case law provides a significant repository of information related to the discoverability of social media, including decisions related to privacy; First Amendment issues; Fourth Amendment issues; application of the Federal Rules of Civil Procedure and Federal Rules of Evidence; duty to preserve/spoliation of evidence; and authentication.  Two of these issues are frequently litigated: user privacy rights and authentication of data.

Privacy issues are complex, and discovery of social media raises not only First and Fourth Amendment issues, but may also involve the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2701 (1986) (also referred to as the “Stored Communications Act” (“SCA”)). Courts are grappling with the role of traditional privacy rights as they relate to discovery of social media and have found that individuals generally do not have a reasonable expectation of privacy with regard to information they provide on social networking sites.

In Ledbetter v. Wal-Mart Stores Inc., 2009 U.S. Dist. LEXIS 126859, No. 06-1958 (D. Colo. Apr. 21, 2009), plaintiffs filed a personal injury action against defendant Wal-Mart, alleging physical injury, mental trauma, and loss of consortium.  Defendant subpoenaed Facebook, MySpace, and Meetup.com to obtain Plaintiff’s personal information, and plaintiff filed a motion for protective order claiming physician-patient and spousal privilege. Magistrate  Judge Watanabe denied plaintiff’s order, finding that the information requested in the subpoena was relevant and reasonably calculated to lead to the discovery of admissible evidence.

With regard to authentication of ESI from social networking sites, some courts have suggested that the ease with which social media data can be manipulated creates the need for a higher standard of authentication.  So, while ESI from social networking sites can be discoverable, it is not considered to be self-authenticating. In Griffin v. Maryland, No. 74, 2011 WL 1586683, at *1-10, *4 (Md. Apr. 28, 2011), the Maryland Supreme Court found that the State failed to provide extrinsic evidence to properly attribute a MySpace profile and postings to the purported author, and remanded the case for a new trial.  The court stated that "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password."

E-discovery cases continue to grow in number and complexity, and federal e-discovery decisions are sometimes inconsistent. Internet usage should be given a high priority when advising clients as the potential for a client to damage their own case is very real. Alternately, social media provides fertile ground for the discovery of useful information about adverse parties.

Some practice tips to consider:

1.         Before issuing a subpoena to a social networking site, seek discovery of social networking information from the opposing party first.

2.         Public searches yield a surprising amount of information about which social networking sites a user participates in, what their user profile includes, and what type of information they are posting.

3.         Be cautious of hiring a private investigator to “friend” the opposing party on any social media sites.  And certainly don’t attempt to contact the opposing party yourself via any SNS.  Such approaches are likely to backfire, may constitute impermissible communication with a represented party, and are likely unethical if they involve deceit.

4.         Take care to avoid spoliation of evidence—as soon as claims are reasonably known to exist, prepare a plan with your client to preserve any social networking information that may be relevant.  It’s likely insufficient to assume that the social networking provider is maintaining an archive of posts and information—you or your client should preserve and maintain an archive of this information on a regular interval.

5.         When a claim does arise, notify the opposing party with the specifics of what social networking information you anticipate will be relevant in this case and instruct them to ensure this information is properly preserved.

6.         Remember – just because something is available electronically doesn’t mean that it can or should be produced instantly.  It may not even be subject to search.

7.         If your case is very complex, consider “unbundling” discovery tasks. Consider assembling a litigation management team to tackle electronic data discovery tasks.

8.         Maintain at least a general familiarity with developments in social networking in order to properly advise clients about how recent changes and developments may alter these recommendations.

9.         Plan in advance for proper authentication of electronic information obtained from social networking sites.  Consider whether it is appropriate to authenticate this information at an individual or 30(b)(6) deposition.

I will be posting more about the unique challenges posed by discovery of electronic information from social media networking sites, including ways to authenticate electronic data.  I’ll also address issues related to the preservation and spoliation of electronic evidence (including Tweets and text messages, to name just a few of the many sources of electronic evidence).

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Written Discovery: Re-Thinking the Definition of "Documents" in the Social Media Age

The social networking era presents attorneys with new challenges that directly affect client representation.  Law dealing with electronic discovery obtained from social networking sites is currently in a state of flux, and attorneys need to be familiar with which types of electronic data are discoverable. The answer is not always clear.

What is clear is that information stored on social media sites is becoming increasingly critical in litigation.  What may have once been a communications medium primarily used by youth is now a mainstay of business communications.  New sources for potentially discoverable social media information include Facebook profiles and messages, Twitter “tweets” and direct messages, LinkedIn profiles and messages, information on Google+ and countless other social media services.

While there may be complications in compelling discovery from some of these sources, at a minimum the definition of “documents” used in written discovery requests, as well as the specific text of requests for production, should specify that the information sought includes these categories of information.  Before discovery even begins, parties should ensure that litigation hold letters sent to their own clients as well as opposing parties also specify that these categories of social media information are likely to be relevant to the disputes in a given case and that they must be appropriately preserved (and preservation of social media is another emerging field—something that I will cover down the road).

To date, there are no new discovery rules that specifically govern social media.  Old rules are being applied to new technology, and the approach of the Courts has generally been to treat social media information the same as other electronic data obtained for discovery purposes.  Federal Rules of Civil Procedure 26, 30, and 34 apply, and in effect broaden the definition of paper documents to include social media information as discoverable electronic data.

FRCP 34(a) was amended in 1970 to include discovery of data compilations.  Dramatic growth in the type and volume of electronically stored data resulted in further amendments to Rule 34 in 2006, to more clearly define discovery of electronically stored information (“ESI”) as being the same as discovery of paper documents. Rule 34(a)(1) is expansive, and is intended to be broad enough to cover the types of ESI available in 2006, and flexible enough to cover future technological developments. Rules 26(b), 26(c), and 34(b) provide guidance on whether and in what form ESI should be produced.  Therein lies the rub -- social networking sites contain a potential treasure trove of discoverable electronic data – but when does this type of data fit the traditional definition of the term “document” and what factors come into play in making such documents admissible evidence?  Lawyers and Judges are only just beginning to navigate this complex realm of discoverable information.

Two key issues are at play when it comes to discovery of ESI from social networking sites. First, what right to privacy do users have when personally expressing themselves in this new area of communication?  Second, because the type of data available on social media can be easily manipulated, what steps should be taken to authenticate data obtained from social media?  Answering those questions and meeting the criteria set forth in the Federal Rules will bring us closer to defining the term “document” as it relates to discovery of ESI from social media.

My next post will address the issues of privacy and authentication of social media discovery.  The courts have held both for and against protecting a users’ privacy, and have suggested that discovery of ESI from social networking sites be held to a higher standard, given the ease with which it can be manipulated.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.