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