Over the last decade, social media has played an increasing role in civil discovery. Inclusion of this data, however, creates new challenges in preserving, collecting, and producing social media. To address these and other issues, the Sedona Conference released its Primer on Social Media, Second Edition. The Sedona Conference is a 501(c)(3) research and educational institute dedicated to moving complex litigation law forward in a reasoned and just way. Although the publications of the Sedona Conference are not binding on courts, the Sedona Conference is widely regarded as a thought leader on cutting-edge legal topics. Thus, its publications offer valuable insight and guidance on the new possibilities and challenges presented by social media discovery.
The Value of Social Media Discovery
Social media contains indispensable information available through civil discovery. As one court quoted in the Primer explains, social media is often akin to a party maintaining “a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others. If there are documents in this folder that contain information that is relevant . . . the presumption is that it should be produced.” Social media can include evidence of a party’s physical capabilities, mental state, geographic location, identity, circumstances, damages, credibility, and bias.
In addition to the information already available from traditional social media sources, the advent of social media messaging has further expanded the available files for civil discovery. As the Primer explains, social media messaging applications have grown exponentially to eclipse traditional forms of social media. As these social media messaging applications continue to take the place of other forms of communication, their value to civil litigation only increases. Critical communications between witnesses in a case are no longer limited to text messages and emails. Rather, witnesses now communicate through social media messaging platforms, like Facebook Messenger or WhatsApp.
The Challenges of Social Media Discovery
Although social media has increasing value in civil discovery, social media discovery creates its own unique challenges. Social media is difficult to preserve and collect. As the Primer notes, the dynamic nature of social media means that it is “easily modified or destroyed by the user, the recipient, the application provider, or by the technology itself.” To make matters worse, some “ephemeral” social media applications like Snapchat are specifically designed to destroy media within minutes or hours. Despite these difficulties, the Primer advises that parties must take “reasonable steps” to preserve social media evidence. If preserving social media evidence is burdensome, the Primer advocates for early discussions between counsel to agree on reasonable steps for preserving social media. Even if these discussions are unsuccessful, they can at least clarify the issues for judicial determination at an early stage to alleviate the risk of spoliation sanctions. Notably, social media illiteracy is no excuse for failing to preserve social media. Rather, the Primer explains that attorneys must be competent to advise clients on the discovery of social media, or to employ other counsel with this competence. The Primer notes that courts have imposed severe sanctions on both clients and counsel in cases where attorneys have failed to preserve social media evidence.
Social media also creates challenges to determining who actually has possession, custody, or control of social media for the purposes of discovery. A party may not be able to determine who actually has “possession” of data because social media data can be stored on a user’s device, hosted by a social media provider, or some combination of the two. That being said, the Primer explains that as a general rule, a party has “control” over its own social media content for which it is the account user. On the other hand, the Primer clarifies that employers generally do not have “control” over social media accounts belonging to their employees.
Finally, discovery of social media creates new challenges in balancing privacy interests with the discovery of relevant evidence. Recipients of requests for social media discovery often raise privacy concerns, especially given the amount of personal information shared through social media. Despite these concerns, privacy considerations do not bar the discovery of social media information. And, privacy concerns should not be conflated with legal privileges. Instead, the Primer advises that privacy concerns are more germane to the question of what discovery is proportional to the case. Privacy concerns are a legitimate burden of discovery that can outweigh the importance of the discovery to the case. Although the same legal standards apply to discovery of social media, courts have recognized that social media discovery “has the potential to disclose more information than has historically occurred in civil litigation.” For this reason, courts “generally reject efforts to obtain ‘all’ social media postings or ‘entire’ account data.” Given the privacy concerns in play and the amount of information at issue, requests for social media discovery should be especially tailored to target the social media information that is most likely to be relevant and of value to the needs of the case.
The value and challenges discussed above are only some of the many legal issues presented by social media discovery. The Primer also discusses other topics including requesting discovery of social media, defending against discovery requests for social media, the role of the Stored Communications Act in discovery of social media, the technical difficulties associated with reviewing and producing social media, cross-border issues with discovery of social media, evidentiary issues related to social media, and attorneys’ ethical obligations to stay abreast of social media discovery. At the end of the day, social media represents a dynamic and evolving area of civil discovery. For this reason, the Primer emphasizes the importance “stay[ing] abreast of ongoing technological and legal developments to ensure continued understanding of the issues surrounding discovery of social media.”