August 1, 2014
by L. Alan Whaley, Partner
It’s no secret – the use of social media is commonplace and widespread. Online statistics say that Facebook had over 1.2 billion active users in the first quarter of 2014, and Twitter has 255 million active users sending 500 million messages a day. And social media is not just for individuals anymore; organizations use it on a large scale, too. According to a study by the University of Massachusetts Dartmouth Center for Marketing Research, as of July 2013 77 percent of Fortune 500 companies were on Twitter, and 70 percent of them had Facebook accounts.
With all this social media use, it is not surprising that social media can have a significant impact on litigation and discovery. Occasionally something dramatic provides a cautionary tale, like the confidential settlement in a Florida employment discrimination case that the defendant private school voided when the plaintiff’s daughter bragged about it on her Facebook account. But there are many aspects of social media which, while not flashy, present interesting e-discovery challenges.
Relevance and the scope of discovery
Some litigants have tried to take the position that their social media content should not be discoverable because some of it is personal, and revealing it could be embarrassing. That argument usually doesn’t work. As with other kinds of evidence, social media content is potentially discoverable if it is relevant to the issues in a case. For example, the courts in EEOC v. Simply Storage Mgt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), and EEOC v. Original Honeybaked Ham Co. of Georgia, 2012 WL5430974 (D. Col. Nov. 7, 2012), both ruled that defendants in sexual harassment cases were entitled to discover some content posted on plaintiffs’ social media sites because it was relevant to the plaintiffs’ claims of emotional distress and financial injury.
The information deemed discoverable was not limited to content that directly addressed or commented on the issues in the litigation, nor was it limited to the public portions of the plaintiffs’ social media profiles. Most courts do not accept the argument that a party has a privacy interest in protecting information posted to a social media account, even its non-public sections. But they are also reluctant to order that all of a party’s social media content is discoverable. So they devise guidelines or methods to identify only the relevant content. In the Honeybaked Ham case, that involved appointing a forensic consultant as a Special Master to help filter through some of the information, and the court’s in camera review of other content. The cost of the consultant was shared equally by the parties.