Electronic Discovery Rules & Social Media

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1 Electronic Discovery Rules & Social Media

2 What is ESI? ESI is any information stored in electronic form All ESI is discoverable if relevant and reasonably accessible Privileges and other exceptions to discovery can apply to ESI ESI can be obtained from third parties (like your telco or hosting company) At the outset of litigation, each party has an automatic duty to preserve ESI. Sanctions are available if a party is found to have intentionally destroyed ESI

3 Some Famous Examples In the Iran-Contra affair, Oliver North s deleted s were discoverable Detroit Mayor s text messages to his mistress in a whistle blower case were discoverable where he discussed the firing The chat histories in your employee s instant messaging programs or their Tweets on Twitter there is enough ambiguity among the court decisions now that you are better off finding a way to preserve them the moment you learn that a lawsuit has been or is reasonably likely to be filed

4 What do the cases say? Fourth Circuit in United States v.minder, 2009 WL (4th Cir. 2009) Although the Court found that the hearsay exception did not apply in this case, the argument was made that Instant Messaging should be an exception under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition The Court made it clear that electronic text in instant messaging could be discoverable.

5 Cases, cont d. May 26, 2010, in the case of Crispin v. Christian Audigier, Inc. (C.D. Cal. Case No. No. CV ) re: the discoverability of private messages sent between users on MySpace and Facebook. Judge Morrow found that messages sent between users via Facebook and MySpace private messaging systems are no different than under the Stored Communications Act. Under the Act, a third-party company storing private electronic data is not required to turn over the private information unless presented with a federal criminal law warrant. However, the judge limited her decision to private messages sent on social media sites and left unanswered other questions, such as the issue of discoverability, through subpoena, of semi-private postings on user walls visible only to a select few.

6 What are the Challenges? The actual practicalities of how you gather the social media data, preserve the data, produce the data are very different. It s probably not on the company or user s servers, and may not even be on the social media sites own servers, but rather in the cloud of leased data storage capacity making the retrieval of such data a practical impossibility, experts say.

7 What the Experts Recommend Earlier this year, the Wisconsin Law Journal reported that ONTRIAL Technologies' president Bruce Olson urged his colleagues to take social media into account when piecing together their archives of interoffice correspondence. He believes organizations should do so now to prevent feature issues as regulatory authorities consider formalizing the requirements of social media archiving and cases get closer to state and federal Supreme Courts.

8 What the Experts Recommend Because each of these social networking sites is different, there s really no one-size-fits-all solution to preservation, collection, or review. They re all different, and they all have to be addressed in different ways. On a practical level -- when a company does get notice of potential litigation, it should both preserve any relevant records within the organization, and also tell employees to preserve any related information outside the business that they might know about as well. If you can show the court that you ve done your best, that s really all you can be expected to do.

9 Spoliation Spoliation is the destruction or withholding of critical evidence, which pertains to archiving in the case of ediscovery. Analysis to determine spoliation includes determining if a party knew or should have known litigation was a possibility and if a party destroyed evidence it knew or should have known pertained to a specific case.in terms of electronic evidence, according to the Wisconsin Lawyer report, "counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." The recent influx of electronically stored information means this step is even more important.

10 What s the Best Course of Action? If you back up data every night, and keep those tapes for six weeks, for example, before recycling the media and overwriting each one, then the rules protect you from a sanctions claim for the data lost in that routine. That is, of course, until you get notice that a lawsuit has or is reasonably likely to occur. At that point, you must begin to save those media in a safe location with a clear chain of custody for each one.

11 Other Cases re: Social Media In Jabbar v Travel Services, Inc., 2010 WL , (D. Puerto Rico, September 10, 2010) the court granted summary judgment in favor of the defendant in a client case involving a hostile workplace claim. The plaintiff asserted that a discriminatory comment was posted by another employee in regards to a Facebook photo taken at a company event. The court found that there were not sufficient facts to show who owned the Facebook account or regarding any company policy of uploading photos to the Facebook service. Although the court ruled in favor of the employer, the negative implication of this is that discrimination involving social networking may present an issue for employers in the future where a company connection to Facebook accounts or posted images can be shown.

12 Other Cases Re: Social Media TEKsystems, Inc. v. Hammernick, No 0:10-cv-0081, filed in the United States District Court for the District of Minnesota, could have far-reaching implications for restrictive covenants in employment law. In this case, a former TEKsystems, Inc., employee allegedly breached the non-solicitation provisions in her employment contract when she contacted a number of individuals through LinkedIn after her employment with TEKsystems ended.

13 Social Media Provider is Morally Neutral Under 47 U.S.C. 230 in the Communications Decency Act (CDA). The CDA immunizes a provider of an interactive computer service from liability for most state and federal claims arising from objectionable content posted by third parties: No provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. See 47 U.S.C. 230(c)(1)). Websites fall within the statutory definition of an interactive computer service. The CDA immunity was enacted to promote robust and unfettered free speech on the Internet by insulating website operators and ISPs from defamation claims and other actions which are triggered by objectionable content originating with third parties and for which the site operator or ISP merely provides a forum or conduit.