With the prevalent use of social media, it is inevitable that those facing litigation, whether they be the plaintiff or defendant, will likely be required to provide access to some amount of social media content during discovery. Here, the data forensics experts at Atlantic Data Forensics detail key information about social media discovery.
There Has Been a Notable Increase in Social Media Discovery Requests
According to a 2017 survey, more than half of the lawyers who participated in the survey claimed that they had seen an increase in e-discovery matters related to social media content and images. While Facebook content continues to the most commonly requested content in discovery, content from Twitter, LinkedIn, YouTube, Instagram and even Snapchat are all discoverable as well.
Private Accounts May Be Eligible for Discovery
A social media user’s privacy settings will not necessarily have an impact on what is considered discoverable. Many courts have ruled that private social media content may also be reviewed during the discovery process, provided it is relevant to the matter at hand. One instance where private social media content may be eligible for discovery is if the user in question has posted public content that directly relates to the litigation issue. In this case, it has already been established that the social media user has posted content related to the matter, and so a discovery of private social media content can be assumed to be relevant and necessary.
An example of e-discovery case law that demonstrates a court’s ruling in favor of discovery is the Forman v Henkin cases that took place in February of 2018—a lower court opinion was overturned and full discovery of private Facebook postings were subsequently condoned. In this case, the New York State Court of Appeals rejected that the Facebook account-holder’s privacy settings would be able to determine the scope of what could be disclosed in court. This demonstrates how changing your social media to ‘private’ may not protect your account from being used as potential evidence.
Discovery Efforts Must Be Appropriately Tailored
Discovery cannot serve as a “fishing expedition” for either party. As mentioned above, social media content is only discoverable if it is reasonably likely that the content will be relevant to the issue being litigated. Social media discovery requests must be narrow in focus, and attorneys will need to think critically about how users manage various platforms: for example, certain kinds of content might be more typically posted in an Instagram story, rather than a Facebook post. Additionally, attorneys should reflect on what social media can provide beyond direct evidence, including an individual’s state of mind, location at a certain time or sense of identity, all of which may be helpful in certain cases.
Issues of Privacy Must Be Weighed Against the Goals of Discovery
Although private social media content may be discoverable, a judge will still weigh the privacy rights of the individual against the necessity of accessing their social media pages. As such, social media content may only be discoverable if it was created and posted during certain dates, or if it matches a keyword filter based on the circumstances of the issue in question. Irrelevant personal information may be redacted from discovered social media content, and social media users may be able to provide the court with social media content files, instead of providing the court with their username and password, in order to ensure privacy is maintained.
The Experts at Atlantic Data Forensics Can Help with Every Aspect of E-Discovery
Ultimately, discovery of social media works in many of the same ways that traditional discovery does, but plaintiffs and defendants should be cognizant of the limitations on privacy for social media content. By staying abreast of changes in the way social media discovery is handled, attorneys can ensure they are providing their clients with the most effective advice possible. The ACED- and kCura-credentialed forensic experts at Atlantic Data Forensics have years of experience helping attorneys and their clients through the e-discovery process, whether through specialized case assessment services, data collection, Early Case Assessment (ECA), online review, production to opposing counsel or reporting. To learn more about how Atlantic Data Forensics can help, contact us today.