Social Media Discovery Plays an Increasingly Large Role in Litigation

| July 19 2017

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Social media discovery is an emergent field of law/compliance, and a rather large one at that. Just in the past few years, there have been a number of cases where social media discovery played a large role, including:

  • McDonald v. Escape the Room Experience, LLC, 2016 WL 5793992 (Mag. S.D.N.Y. Sept. 21, 2016). Motion to compel granted ordering plaintiff to produce postings about plaintiff’s socializing, her attendance at parties or other social outings, and her participation in performances or other employment activities. Plaintiff’s production must include her complete postings, during the relevant time period, on any electronic social media or internet sites, including dating sites.
  • Matthews v. J & J Service Solutions, LLC, 2017 WL 2256963 (Mag. M.D. La. May 23, 2017). Plaintiff ordered to comply with document requests for all social media communications with defendant’s current or former employees and for archived Facebook material. Social media is discoverable.

These are two recent examples. Others appear in the court system every day. Social media discovery is a very real issue.

The psychology of social media discovery

It’s helpful to begin here. No matter how many times a company may warn its employees about what to post on social sites, many social media users -- and now most American adults are on 2+ sites -- view it as a carefree way to express their opinions.

The rubber meets the road on the issue as regards privacy; many social media users have an expectation of privacy based on their personalized settings. But, in recent years, courts have tossed out “social media privilege,” meaning discovery rules can now include broader data -- even if the data was thought/deemed by the poster to be “private.”

What does this mean for the company side?

Parties in any form of litigation are entitled to discovery of relevant, non-privileged information. Social media discovery, then, is relevant despite the privacy settings of the user.

A company needs to make sure it chooses the right partner in the social media discovery process. Ideally, once you move past the cost structure you can allocate for discovery (usually out of the legal budget), these should be among your chief concerns:

  • Is this process used going to be legally defensible?
  • Will it minimize risk on our end?
  • Can it capture from (a) various sources on the web and (b) dynamic content?
  • Will the findings of the discovery process hold up as evidence in a court case?
  • Can the findings integrate with review platforms?

Social media discovery can also be used to collect team messaging content for litigation, or content aimed at protecting intellectual property rights.

Why this matters right now

The rapid rise of social media -- corollary to the rise of mobile -- has created novel litigation contexts for companies. (In the San Bernardino shooting in 2015, Apple and the FBI were locked in a long legal battle over the attackers’ cell phones.) As courts have eased up on social media discovery rules with seemingly more preference towards the company side, it’s a strong tool to use in certain litigations.

Because of the psychology mentioned above, employees will almost always post inappropriate content on social media sites. Corporate risk can rise in these situations, and one of your goals is to minimize corporate risk. Additionally, an employee may claim to break a leg, file an insurance claim, and post ski vacation pictures shortly thereafter. In that case, social media discovery operates as a quick stopgap against insurance fraud.

Point being: social media discovery does matter greatly right now, especially as the largest generation in the workforce now (millennials) often reached adolescence with these platforms and devices, so a reduction in use time isn’t likely. If you’re ready to discover how your business can use social media discovery to prepare for litigation, set up a demo with one of our experts today.

 

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