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Safely Navigating the Stormy Seas of Social Media Discovery

Navigating Stormy Social Media Discovery

Social media is used by billions of people for personal and professional purposes. Our pocket-sized cell phones provide a gateway for instant connection and gratification through social media, at any time and in any place. Individuals use social media to share their achievements, family vacation photos, political views, and favorite videos. Organizations leverage social media to reach prospective consumers. Nefarious actors have even exploited social media to spread misinformation and sow distrust, with global implications.

As discussed in an article we recently authored for Bloomberg BNA, it should come as no surprise then that social media has emerged as a type of evidence that may be relevant in civil and criminal litigation. Statements, images, and videos that are shared online can constitute probative and revealing evidence of conduct or state of mind that may be critical to a case. Information intentionally or carelessly disclosed on social media may contradict or refute positions taken in legal actions, thereby providing critical evidence that could vindicate opposing claims or defenses. 

Given the potential evidentiary value of social media in litigation and because social media can present a host of discovery challenges, lawyers need to understand how to obtain and preserve such information. Indeed, questions abound regarding the:

  • Proper scope of discovery of social media information;
  • Possession, custody, or control of social media content;
  • Impact of privacy considerations;
  • Application of cross-border data protection laws; and
  • Need to satisfy evidence admissibility standards.

The Sedona Conference WG1 Primer on Social Media

To competently address these problems, lawyers should turn to resources that can help them understand the social media landscape and learn best practices for addressing the issues. One such resource is The Sedona Conference Primer on Social Media, Second Edition, which was recently published for public comment.

The second edition of the Primer represents the collaborative work of a drafting team, which Sedona engaged in 2017 to study significant advances to social media technology and related legal developments. In particular, the proliferation of messaging technologies and business applications, together with a major evolution in “traditional” social media platforms, made updates to the 2012 edition of the Primer imperative.

The new Primer provides guidance on contemporary social media discovery issues, together with a basic overview of existing social media technologies and legal developments driving those issues.

Guidance from the Primer includes a detailed analysis of relevance, proportionality principles, and privacy considerations in the unique context of social media discovery. Drawing on Sedona’s Commentary on Rule 34 and Rule 45 “Possession, Custody, Or Control,” the Primer also examines differing jurisdictional standards regarding possession, custody, or control and how they impact the discovery of social media content from individuals, organizations, and third parties.

The Primer explores the contours of preservation and provides useful guideposts for meeting preservation obligations, such as the meaning of “reasonable steps” under FRCP 37(e) in the context of social media. It also offers practical strategies for preserving various forms of social media, from screen shots to “exact native files.” In addition, the Primer provides suggestions for addressing related discovery issues without running afoul of the Stored Communications Act.

The Primer also addresses timely developments in international laws that may affect social media discovery.  Building on guidance from Sedona’s International Principles on Discovery, Disclosure & Data Protection, the Primer examines the impact of cross-border data protection laws on efforts to obtain social media from protected individuals under the new General Data Protection Regulation (GDPR).

It also analyzes methods for authenticating social media evidence and spotlights the role of amended Federal Rule of Evidence 902.

The Primer closes by reviewing ethics rules that counsel should consider in connection with social media discovery.

Lauren Schwartzreich

Reinforcing the firm’s commitment to providing its clients with leading-edge solutions in this critical area of the law, Lauren E. Schwartzreich assists Littler lawyers and clients on all aspects of electronic discovery, including initial preservation obligations; developing strategies for efficient and effective data harvesting, review and production; implementing cost-shifting/cost-reduction strategies; and the admissibility of electronic evidence at trial. Lauren has extensive trial experience and handles court appearances and motion practice on matters relating to eDiscovery.

Before joining Littler, Lauren worked at a boutique plaintiff-side employment firm where she litigated numerous employment class actions, contract disputes and discrimination claims. She also created and managed an eDiscovery consulting business that provided counsel and guidance to law firms.

Lauren frequently speaks and publishes on eDiscovery, social media, privacy and litigation technology issues.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.