In civil litigation, 'private' social media data isn't private

The rules governing e-discovery apply to social media and trump both a social media website's privacy guidelines and an individual user's privacy preferences.

From time to time, new communications technologies force courts and legislatures to adapt existing standards and even develop entirely new ones. The telephone raised issues related to wiretapping, among other things. Email became a factor in litigation-related discovery actions. Social media is likely to do the same, if only because use of such sites has become so widespread.

Over the last several years, user participation in social media websites has exploded. For example, Facebook claims to have more than 800 million users on its network, Twitter users post something approaching 150 million tweets a day, and YouTube claims that more video is uploaded to its site every month than the three major U.S. networks created in the last 60 years. Such statistics tend to confirm that social media websites are here to stay, and their emergence as commonplace communication platforms suggests that the law will have to take notice.

For example, websites' privacy guidelines might not carry much weight when it comes to litigation. When a lawsuit is filed, attorneys inevitably scour the Internet for evidence relevant to the claims and parties, which frequently leads to one or more social media websites, such as Facebook and LinkedIn. Social media users (and lawyers representing them in litigation) should realize that data posted on social media websites is likely subject to review and disclosure when relevant to the issues in a lawsuit, without regard to the particular website's privacy guidelines or the user's privacy settings.

Social media postings also raise issues involving evidence preservation. In state and federal courts, the parties to a lawsuit must undertake reasonable measures to preserve (and to prevent the destruction of) evidence that might be relevant to the claims and defenses in the case. Furthermore, virtually every jurisdiction in the United States allows parties to a lawsuit to demand the production of information that is either relevant to the matters at issue in the lawsuit or reasonably likely to lead to the identification of other relevant evidence.

How might these rules be applied to data posted on social media websites? Let's consider an employment dispute in which the plaintiff alleges a hostile work environment because of vulgarities used in the workplace. In such a case, attorneys for the defendants would have an interest in Facebook posts, videos, photos and messages showing the plaintiff's routine use of similar language. Such posts would be relevant to the issues in the case and therefore discoverable by opposing counsel, since they suggest that the plaintiff was not likely to have been actually offended by the vulgarities. Like any discoverable documentation, such relevant posts could not be withheld on the basis of a claim of privacy, and so they may be subject to production when requested in discovery during litigation.

Or consider a case in which a plaintiff alleges that he did not receive statutorily required meal or rest breaks. Attorneys for the defense might again turn to the plaintiff's use of social media websites. Evidence indicating the amount of time the plaintiff spent online and the dates and times of any online postings made by the plaintiff may become relevant and subject to disclosure in discovery.

Postings on social media websites are a modern, electronic form of communication in a highly public forum. When such types of communication become relevant in civil litigation, they are discoverable regardless of the privacy policy of the social media website. More importantly, they are discoverable even though the poster believed the posting would be confined to the "private" social media account or page. Stripped of the trappings of their newness, social media postings are no different from other types of communication -- whether private or otherwise -- that courts have allowed parties to obtain in discovery in civil litigation.

However we resolve the other privacy issues surrounding social media, when viewed through the lens of civil litigation, social media posting is just another example that there is nothing new under the sun. The sooner social media users and their lawyers realize this, the better off everyone will be.

Aaron D. Crews is an attorney whose practice focuses e-discovery. The views expressed in this article do not constitute legal advice.

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