While electronic discovery issues can take many forms, the evolving diversity and number of social media websites and applications pose legal, practical, and ethical litigation challenges. Businesses engaged in litigation increasingly are impacted by the obligation to preserve social media information and to access this content when it is relevant evidence in litigation.
Understanding the Duty to Preserve Social Media Evidence
The duty to preserve relevant evidence extends to all forms of electronically stored information (EIS). This responsibility to preserve EIS is particularly complex in the context of social media because of the dynamic nature of the medium, especially messaging applications. The obligation to preserve this information arises as soon as the evidence appears relevant to litigation. Once a party has possession, custody, or control of such evidence, the duty arises to preserve the information.
Attorneys must inform their client of this legal duty, and parties have a duty to preserve information relevant to litigation. Legal counsel engaged in discovery also must employ reasonable efforts to facilitate preservation of relevant information by their client. If attorneys advise their clients to obstruct or destroy EIS, this conduct can lead to massive sanctions in litigation and ethics charges brought by the state bar.
The seminal discovery case of Lester v. Allied Concrete serves as an example of the harsh professional licensing consequence for legal counsel who fails to abide by these ethical and judicial standards. The Virginia State Bar pursued professional disciplinary charges against an attorney who advised a client to delete photos posted on Facebook. The state bar imposed a five-year suspension on the lawyer for violation of ethics rules governing candor toward the court and fairness to the opposition.
While most attorneys would not intentionally engage in this type of egregious discovery violation, the special nature of social media can constitute a trap for the unwary. The vast array of messaging apps and social media sites make compliance with evidence retention requirements extremely difficult. Counsel often must identify and search through many messaging and social media apps to determine which might contain relevant evidence. Preservation issues involving social media also are complicated by the dynamic nature of social media. For example, applications like Snapchat often have their content eliminated immediately after being received or sent.
Strategies for Effective Compliance with Social Media Discovery Demands
Because of the unique features of social media during discovery, discovery counsel must take steps to mitigate the risk of sanctions. One strategy is to utilize proportionality standards. When the parties use reasonable, good faith in preserving, identifying, and producing relevant information, they can mitigate the cost and complexity of social media discovery. Both parties benefit from being protected from mutually agreed limits on the scope of discovery. This approach invites a focus on the needs of the specific litigation rather than identifying and preserving every theoretically relevant social media post or message.