Goldmine or downfall Preserving social media communications for e-discovery

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By Correy Stephenson

The Daily Record Newswire

BOSTON -- As more and more individuals and businesses participate in social media, the amount of litigation-related information on sites like Facebook and Twitter is rising.

For lawyers, these sites can be an electronic discovery gold mine -- or they can be the downfall of a case.

How can lawyers ensure that social media communications are preserved for trial? Conversely, how can they stop their clients from putting themselves at risk of sanctions for deleting information?

Social media is implicated "in every kind of case, from corporate espionage all the way down to a fender-bender," said Stephen D. Riden, a commercial litigator and partner at Beck Reed Riden in Boston.

Josh Gilliland, an e-discovery practitioner in San Jose, Calif. and author of the Bow Tie Law blog on e-discovery, noted a recent trademark infringement case between two restaurants where the plaintiff sought sanctions against the defendant after the latter changed an allegedly infringing Facebook profile photo. (Katiroll Co. v. Kati Roll & Platters, Inc., No. 85212 (D.N.J. 2011).)

The court concluded that changing a Facebook profile picture could result in the loss of discoverable evidence, but declined to impose sanctions on the defendant, recognizing that changing such a photo is a "common occurrence" and that it was not surprising the defendant didn't realize its actions would impact evidence in the litigation.

Because the court found that the spoliation was unintentional, it ordered the defendant to change its profile picture back to the allegedly infringing photo so that the plaintiff could print the information it believed supported its case.

"This ... opinion ... recognized how fast [social media] can change," Gilliland said.

Preserving client information

Because sites like Twitter and Facebook change every minute, parties involved in litigation must be prepared to deal with the preservation of such mediums, Gilliland said. Education may be the first step, Riden said.

"Parties are typically unwilling to cough up [social media] communications," he said. "When I inform clients of their obligation to preserve information or explain that it is discoverable, they are surprised -- and resistant."

While clients may understand that things like work e-mails are discoverable, they feel that Facebook "is a personal mode of communication," Riden said.

Businesses aren't well-prepared either, noted Karen Hourigan, a partner at Redgrave LLP in San Francisco who focuses her practice on records litigation preparedness and electronic discovery. "Companies feel obligated to have a social media presence but they don't realize what they are putting out there."

To get the importance of preservation across, "I read my clients a variation of the riot act," Riden said. "I let them know the penalty for deleting things like a Tweet or an IM over Facebook is high and could affect the outcome of the case."

Riden instructs clients not to delete or change anything on their social media platforms. In one case, he even had a client share his Dropbox password so he could ensure that all the information was being properly preserved.

"I tell my clients that to the extent any communication over any websites pertains to this action, don't delete anything and keep it as is," Riden said. "Further, don't have any future communications about this case, including on these websites."

Riden suggested that lawyers conduct such a discussion face-to-face and even in front of the client's computer, to walk through all the different ways they interact with others online.

"I try to do that in every case, and I've found that it is really the only way to be comprehensive in gathering information," he said.

For businesses, Hourigan advises her clients with a presence on social media to draft a policy that describes their online purpose as well as guidance about preservation, so that such procedures are already in place if and when litigation occurs.

Preservation by the other side

In requesting social media communications from the other side, Riden said he is careful to be very specific.

"I ask for all communications in electronic form and I specify that I mean e-mail and social media sites, naming specific sites," he said, including Facebook, Twitter, MySpace and even certain mobile apps like salesforce.com.

In some cases -- such as suits for defamation or libel -- attorneys may want to make attempts to preserve an opponent's communications prior to sending a cease and desist letter or complaint, Hourigan said.

However, it's important to resist the temptation to friend an opposing party or witness. Ethics boards in California, New York and Pennsylvania have found that such requests are deceptive and improper ex parte communications.

Riden suggested that attorneys can contact social media companies directly to preserve an opposing party's information.

Facebook will allow litigants to request preservation of an account through its security department, Riden said, although to have the company actually produce the content lawyers will need to provide a subpoena or court order as well as pay a fee.

"Different sites have different requirements about downloading and copying," Hourigan noted, so a case that involves multiple social media sites could get complicated. For example, Twitter considers itself the owner of all Tweets, but Facebook has an option that allows a user to download his or her own profile and information, she said.

Another cheap method of preservation: hit "print."

In smaller suits involving individual plaintiffs or small companies, courts may be forgiving and recognize that the parties are less tech-saavy, Gilliland said. That means a screen shot or a printed screen, as long as it is authenticated, could possibly be introduced as evidence.

In those cases, "the screen shot should include the full URL and a header at the top or bottom giving the date," and metadata that shows when the screen shot was taken to meet authentication standards, he said.

In bigger cases, or where concerns about authentication exist, Gilliland suggested hiring a private investigator to take screen shots or using software to capture website architecture.

Published: Mon, Sep 26, 2011

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