Thursday, January 26, 2012

Written Discovery: Re-Thinking the Definition of "Documents" in the Social Media Age

The social networking era presents attorneys with new challenges that directly affect client representation.  Law dealing with electronic discovery obtained from social networking sites is currently in a state of flux, and attorneys need to be familiar with which types of electronic data are discoverable. The answer is not always clear.

What is clear is that information stored on social media sites is becoming increasingly critical in litigation.  What may have once been a communications medium primarily used by youth is now a mainstay of business communications.  New sources for potentially discoverable social media information include Facebook profiles and messages, Twitter “tweets” and direct messages, LinkedIn profiles and messages, information on Google+ and countless other social media services.

While there may be complications in compelling discovery from some of these sources, at a minimum the definition of “documents” used in written discovery requests, as well as the specific text of requests for production, should specify that the information sought includes these categories of information.  Before discovery even begins, parties should ensure that litigation hold letters sent to their own clients as well as opposing parties also specify that these categories of social media information are likely to be relevant to the disputes in a given case and that they must be appropriately preserved (and preservation of social media is another emerging field—something that I will cover down the road).

To date, there are no new discovery rules that specifically govern social media.  Old rules are being applied to new technology, and the approach of the Courts has generally been to treat social media information the same as other electronic data obtained for discovery purposes.  Federal Rules of Civil Procedure 26, 30, and 34 apply, and in effect broaden the definition of paper documents to include social media information as discoverable electronic data.

FRCP 34(a) was amended in 1970 to include discovery of data compilations.  Dramatic growth in the type and volume of electronically stored data resulted in further amendments to Rule 34 in 2006, to more clearly define discovery of electronically stored information (“ESI”) as being the same as discovery of paper documents. Rule 34(a)(1) is expansive, and is intended to be broad enough to cover the types of ESI available in 2006, and flexible enough to cover future technological developments. Rules 26(b), 26(c), and 34(b) provide guidance on whether and in what form ESI should be produced.  Therein lies the rub -- social networking sites contain a potential treasure trove of discoverable electronic data – but when does this type of data fit the traditional definition of the term “document” and what factors come into play in making such documents admissible evidence?  Lawyers and Judges are only just beginning to navigate this complex realm of discoverable information.

Two key issues are at play when it comes to discovery of ESI from social networking sites. First, what right to privacy do users have when personally expressing themselves in this new area of communication?  Second, because the type of data available on social media can be easily manipulated, what steps should be taken to authenticate data obtained from social media?  Answering those questions and meeting the criteria set forth in the Federal Rules will bring us closer to defining the term “document” as it relates to discovery of ESI from social media.

My next post will address the issues of privacy and authentication of social media discovery.  The courts have held both for and against protecting a users’ privacy, and have suggested that discovery of ESI from social networking sites be held to a higher standard, given the ease with which it can be manipulated.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

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