Social Media E-Discovery in the Courtroom
The year is 1986. Mark Zuckerberg is two-years-old and the internet is just starting to make its way into research, academics and business. With the era of electronic data begun, Congress enacts the Stored Communications Act (SCA), extending Fourth Amendment protection against unreasonable search and seizures to electronically stored information (ESI).
Fast forward to 2017. Mark Zuckerberg’s daughter is one-year-old. Email, instant messaging and social networks dominate how we communicate – and ESI has become a routine target of discovery during litigation, including cross-border litigation. Translating legal documents that surface during cross-border e-discovery has become a critical part of that process. In 2013 the global e-discovery market (services and software) was valued at $5.5 billion. By 2022, it is expected to grow to around $21 billion – driven primarily by the exponential year-over-year growth in the volume of ESI generated.
Social media e-discovery
Today, a litigant’s social media posts (on Facebook, Instagram, Twitter, LinkedIn, etc.) can be included in e-discovery if there is evidence that their content is relevant to the case. These posts are used as evidence in numerous lawsuits, but are particularly central to matters related to personal injury, employment, family, theft of IP or unfair competition.
Part of the value of social media posts in e-discovery comes from the metadata, including date and time stamps and geolocation information, all of which can be instrumental to making or breaking a lawsuit. Lawyers, and legal translators (if needed), can use collection tools to capture and index data from public social media accounts around the world. If they are password-protected or otherwise access-restricted, litigation attorneys can request passwords or to receive the content directly from the account holder as part of the e-discovery process.
What does this mean for me?
For the individual, it is important to understand that content you have posted on the internet can and will be used against you in a court of law. There are already many examples of lawsuits claiming damages for physical and mental pain that have been thrown out due to time-stamped pictures of the plaintiff out and about that were used as evidence to prove that the claims were unfounded.
It is forbidden to tamper with potentially damaging social media content once a lawsuit has been brought or even once it becomes clear that a lawsuit is likely. Deleting posts and/or closing accounts can be treated as destruction of evidence, which is a serious offense in a civil or criminal law case.
The best advice is to always keep your social media posts, emails, instant messages, etc. clean of any content that could be construed as incriminating.
What does it mean for my company?
A content-rich online presence is an essential component of doing business today. A recent study conservatively estimated that 65% of Fortune 100 companies have active Twitter accounts and 54% have Facebook fan pages. One out of three F100 companies has a blog. Increasingly, companies are also translating their social media and blogs to target overseas consumers, and those posts may require legal translation in the event of a lawsuit.
Although online content was not as pervasive in 2006 when the Federal Rules of Civil Procedure were amended to include ESI, the Committee responsible for the amendment said the term was “intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” Thus, companies today have a duty to preserve relevant or potentially relevant online content when litigation and legal document review is underway or pending.
There is a growing trend of strong court sanctions against attorneys and their corporate clients for failing to comply with e-discovery rules by tampering with social media content.
Cross-border litigation and social media
Cross-border litigation poses considerable challenges for discovery/e-discovery in general and for social media discovery in particular. The casual and informal language used in social media posts, for example, makes them harder to parse in the machine translation platforms that are often used to pre-screen and catalog foreign language e-discovery content. In such cases, foreign language document review might be the better option. On a more fundamental level, however, international social media e-discovery raises very basic questions such as whose law governs standards of free speech on social media platforms. Or, as Alex Mills writes in the Journal of Media Law, “…whose law rules ‘Facebookistan’?”
The future of social media in discovery
With over 500 million tweets going out every day and close to two billion active Facebook users, it’s a prolific era for shared online content everywhere in the world. And while social media can bridge social gaps and support your marketing and sales efforts, it’s important to remember that every post, picture and comment is timestamped and stored. It can come back to haunt you or your company if litigation arises. Protect yourself, your colleagues and your company by giving serious thought to anything you post online.