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In the digital age, it comes as no surprise that more and more evidence is appearing online in social media channels like Facebook, Twitter, and LinkedIn. In light of this, it’s important to have a solid grasp of how clients are using social media. You never know when it might have a big impact during a court case.
Keep reading for a brief primer on social media during discovery, along with some famous examples of what it looks like in the real world.
eDiscovery: An Overview
The request for social media evidence typically arises during the legal eDiscovery process. As you may already know, legal discovery occurs before two teams go to court. During this process, two sides meet and confer, then request and exchange information that’s relevant to the case at hand.
Under Rule 34 of the Federal Rules of Civil Procedure (FRCP), discovery can include electronically stored information (ESI), which is sent and received via a process called eDiscovery. Examples of ESI include drawings, writings, graphs, charts, photographs, sound recordings, images, data, and other data or data compilations.
Rule 34 also says that a party may serve on any party a request within the scope of Rule 26(b). This rule outlines the duty to disclose, as well as general provisions governing discovery.
Using Social Media as Evidence in Court
Social media may count as ESI in court. However, you can’t always access social media information.
It’s important to realize that eDiscovery requests for social media don’t always work. The other party may object, especially when the request concerns evidence posted to a private social media account.
When this happens, another party may file a motion to compel and ask the court to force compliance. And in some cases, the court will accept the motion. Courts sometimes allow the discovery of social media information when the litigant can demonstrate relevance to a particular case.
As such, Rule 37 of the FRCP—which covers failure to make disclosures or cooperate in discovery—notes that counsel should become familiar with clients’ information systems and digital data, including social media. In some cases, legal teams may even have a duty to protect social media information for possible use in a trial.
For example, this may include private messages, public posts, comments, likes, tweets, and retweets. Failure to preserve social media data could potentially have a negative impact on a case. And if the court suspects that information is willingly destroyed or manipulated, this could result in sanctions.
Given these points, it’s a good idea to communicate with clients and gain a clear understanding of any social media evidence they may have—even if it may not apply at first. It’s possible that information could arise during a case, requiring presentation.
Can You Place a Legal Hold on Social Media Information?
In some cases, it may be necessary to put a legal hold on social media information. A legal hold is a request to preserve data as evidence. Attorneys issue legal holds to clients in anticipation that the private information they have may count as evidence in court.
In brief, it’s possible to place a legal hold on social media information, but it can be challenging. For example, it isn’t always clear what the user should put on legal hold. You have to examine each case and determine whether it makes sense to include an entire user account or just parts of it, such as messages and public posts.
Further, it can be challenging to enforce a legal hold—especially when users have such easy access to social media across a range of devices. Clients can sometimes act impulsively or on their own accord, potentially causing legal ramifications.
Generally, legal teams should avoid placing manual holds on social media accounts. It typically makes more sense to use auto-archiving solutions, which can scan client accounts and pull data. Doing this removes the client from the responsibility of preserving information. The client can still act as they wish, but it eliminates the threat of accidental or intentional spoliation.
Three Examples of Social Media in Discovery
Here are three famous examples of cases involving social media discovery in court.
1. State of Connecticut v. Eleck
In this case, there was a situation where an altercation resulted in two injured individuals. The defendant, Robert Eleck, was found guilty but claimed admissible evidence was excluded. Eleck produced copies of Facebook comments from the state’s witness, who argued that she did not write the comments and that they were the result of hacking.
The court upheld the ruling, citing the claim for proof of authorship with evidence.
2. Monica Hinostroza v. Denny’s Inc.
This was a famous slip-and-fall case, where Denny’s—the defendant—moved to compel discovery from the plaintiff. Among the information requested was a review of the plaintiff’s social media accounts. After analyzing the case, the court granted the social media request because it was directly relevant to the issues involved in the case.
The court ruled that social media activity can reflect an individual’s emotions and mental state.
3. Nucci v. Target
Nucci v. Target was a personal injury case. In this example, there was a dispute over the plaintiff’s Facebook posts. The plaintiff filed a lawsuit saying she suffered permanent injuries after slipping and falling. Target then pursued images the individual posted on Facebook for a period of two years prior to the incident. However, the plaintiff objected on the grounds that the request was too broad and burdensome and violated her privacy rights.
To sum it up, the court compelled the individual to produce the photographs. The court rejected Nucci’s claim that the request was too broad. Moreover, the court concluded that there was no violation of clearly established principles of law for the miscarriage of justice, and hence no opportunity for review. What’s more, the court ruled the images to be highly relevant for discovery.
As you can see, each case is very different. It’s not always possible to tell how a court will rule in terms of eDiscovery requests involving social media. In some cases, the court may choose to grant an eDiscovery request. Other times, the court may rule against it.
For this reason, it’s all the more important to know what clients are doing on social media and preserve evidence for potential use in court.
How Venio Helps with eDiscovery
Managing eDiscovery can be very difficult, especially when working with multiple clients. For the best results, legal teams need to have a strong system in place for collecting, managing, preserving, and presenting information.
Enter Venio, which offers the VenioOne platform—a cloud-based eDiscovery solution that streamlines eDiscovery end to end. VenioOne gives legal teams a centralized platform for eDiscovery, providing easy and secure access to information. Using the platform to power eDiscovery efforts will lower costs and streamline processing. It’s useful for managing any type of information, ranging from social media data to documents, photos, and charts, to name a few examples.
Request a free trial of VenioOne today to see the power of the platform firsthand.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.