August 5, 2014
by L. Alan Whaley, Partner
It’s no secret – the use of social media is commonplace and widespread, and it's not surprising that social media can have a significant impact on litigation and discovery. There are several aspects of social media that present interesting e-discovery challenges.
Access to data
Knowing a party has social media content that may be relevant is one thing; getting access to it is another. A significant factor in seeking access to another party’s social media content is the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA was written in the mid-1980s, before the advent of the World Wide Web, and it presents an often cumbersome framework that courts have found to be an imperfect fit when applied to social media. But it prevents internet service providers from supplying access to the non-public electronic communications of their subscribers, so simply sending a civil subpoena to Facebook will get you nowhere, and in some courts will be sanctionable as an overreaching discovery tactic.
There are exceptions under the SCA for government-issued subpoenas and warrants, and the analysis in a given case will depend somewhat on whether a provider is deemed to be an “electronic communication service” (ECS) provider or a “remote computer service” (RCS) provider under the statute – and sometimes the same provider can be both an ECS and an RCS. In addition, sometimes the type of data storage (Is it “temporary”? Is it “backup”?) determines whether the SCA applies. Parsing through the nuances of these definitions is beyond the scope of this brief article, but the upshot is this: it will be difficult if not impossible to force an ECS or RCS provider to provide access to social media content without the consent of the subscriber. If the subscriber won’t give consent voluntarily, one option is to seek a court order directing that the consent be given.
One significant aspect of electronic data is that it frequently changes, and that is especially true of social media content. Therefore, at the beginning of a case it may be particularly important to try to preserve the status of another party’s social media information. You can do this with a preservation notice to that party, or if you think additional measures are needed, consider a preservation request to the service provider or even a “preservation subpoena” and motion filed with a court.
If a party has obtained social media content and needs to get it into evidence, authenticating that evidence may become an issue. One approach is to preserve and print a static image from a social media account – that can easily be done with a party’s public social media posts, for example. But the personal testimony of an authenticating witness, like the person who collected and printed the image, will probably be necessary. And with some kinds of content, like video or audio materials, special software and the assistance of a forensic computer consultant may be needed.
There are several additional things about social media that practitioners should at least be aware of. These include identifying who actually has possession, custody, or control of social media content – sometimes, it’s not exclusively the subscriber. And there are very important ethical considerations affecting how a lawyer should use social media, both in the discovery context and otherwise. For example, it is widely considered unethical for a lawyer to “pretext” – that is, to seek “friend” status under false pretenses to gain access to someone’s social medial content. And of course, using social media recklessly, such as through blog posts or online comments, can invite trouble for lawyers and even judges. In an information environment that can sometimes seem like the Wild West, circumspection is good policy.