The State of Social Media eDiscovery Today
Take a look at your Facebook profile. Scan through your tagged pictures, status updates, interests, and pages you are a fan of. If you were a stranger, how much information could you gather about yourself? Better yet, could you determine what you were doing last week, last month, or even last year at this time? That is a lot of information. And much of this information is discoverable and increasingly asked for in court. That link to a video of an 80s rock band performance and that (inevitable) status update about what you ate for lunch could both be asked to appear in court. Given the wealth of information on social media, it is no surprise lawyers and judges want to dig into these pages for litigation. But, this raises two important questions: what is discoverable on my social media page, and what does social media eDiscovery mean for my business?
What is discoverable on social media?
To be frank, the line between what is and what isn’t discoverable in social media is blurry. But interpretations of the Stored Communications Act (SCA) have begun to pioneer a boundary. Basically, the SCA aims to protect user data held by a third party when there is a reasonable expectation of privacy. However, a social media user is generally not considered to expect privacy. This means that anything public on your social media page is probably discoverable. For instance, in Offenback v. LM Bowman, Inc., et al., the plaintiff was ordered to turn over Facebook postings on his wall that contradicted his personal injury claim. It was ruled that Offenback posted without an expectation of privacy, meaning his contradictory posts were discoverable.
Social media users do expect privacy in parts of social media, however. This includes private messages and if deliberate privacy settings are in place. An interpretation of the SCA recognizes this expectation of privacy in Crispin v. Audigier, Inc. The court barred the social media eDiscovery of private messages on Facebook and stated that if privacy settings are put in place to restrict access, then there is an expectation of privacy. Given the customization options on a Facebook page, however, it is unclear just how “private” your profile has to be for it to be protected. In fact, in other cases, privacy settings were completely ignored in eDiscovery. As a rule of thumb, public parts of your profile are generally discoverable, and the private sections may not be entirely private.
What does social media eDiscovery mean for me?
Given the doubts about what is discoverable, there are worries associated with social media eDiscovery. Clearly, not knowing what is expected to be permissible is a concern. Social media’s rise also means that more and more information may be expected to be produced too. In fact, Gartner Research predicts that by the end of 2013, half of all companies will have to produce social media records during the eDiscovery phase. This means social media eDiscovery will continue to weigh on firms’ minds. To cover all of your bases, you should prepare for the worst. You should expect that all of the information on your page (and your business’) is discoverable. Until definitive precedent or regulation is established, this is really the only way to be fully prepared for the onslaught of social media eDiscovery. This means being able to access all of your social media records quickly, as well as being able to preserve them if they are put on litigation hold. Given how much information is on a profile, this may be scarier than your link to that 80s rock band performance. But, like the big hair of that decade, time (and further precedent) should deflate the worries about social media eDiscovery.