Social media in discovery, new FTC rules discussed



By B. Jay Yelton III
Leader E-Discovery and Records Management

Don’t forget social medial during discovery

Social media continues to be important in litigation, especially in cases where the plaintiff alleges damages for emotional distress or mental injury. Courts are increasingly allowing discovery of the plaintiff’s social media accounts, including Facebook, LinkedIn and MySpace.

In Robinson v Jones Lang LaSalle, the plaintiff sought damages for employment discrimination, and defendant requested discovery into her electronic communications. The court stated, “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” The court noted “that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff's allegations of the severity of that distress.” The court ordered plaintiff to produce any “online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context” which relate to “any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.”

At the start of each case, counsel should evaluate the potential relevance of social media accounts. If relevant information might be obtainable from those sources, counsel should craft tailored interrogatories and document requests asking for them. Counsel should also consider referring to social media accounts in any preservation notice sent to the opposing party.

New FTC Rules Address Electronically Stored Information and Privilege Issues

The Federal Trade Commission (FTC) promulgated revised rules concerning its investigative procedures, which take effect on November 9, 2012. Several changes concern the treatment of electronically stored information (ESI) and the protection of privileged materials. To a large degree, these new provisions mirror those found in civil proceedings.

Section 2.4 announces the FTC’s investigational policy encouraging “the just and speedy resolution of investigations” and “cooperation in its investigations.” This policy is comparable to Rule 1 of the Federal Rules of Civil Procedure and of The Sedona Conference’s “Cooperation Proclamation,” which applies to ESI discovery.

Section 2.7 addresses the use of compulsory process via civil investigative demand (CID) or subpoena. Paragraph (i) provides the FTC with the right to “require the production of documentary material, or electronic media or other tangible things, for inspection, copying, testing, or sampling.” Paragraph (j) goes on to provide the manner and form of production of ESI. Respondents are required to follow all instructions provided by the FTC absent written permission to do otherwise. In cases where the FTC does not provide instructions, the respondent must produce ESI “in the form or forms in which it is ordinarily maintained or in a reasonably usable form,” similar to the rule in civil proceedings.

When the FTC serves compulsory process, Section 2.7(k) mandates a meet and confer session prior to the filing of a petition to quash or limit. If the respondent wishes to discuss ESI-related issues, a person familiar with ESI systems and methods of retrieval must attend the conference.

Section 2.11 addresses the protection of privileged information. Paragraph (a) sets forth the categories of information that must be contained in a privilege log. Additionally, paragraph (b) requires another mandatory meet and confer session “to discuss and attempt to resolve any issues associated with the manner and form in which privilege or protection claims will be asserted.” Logging requirements may be modified at the meet and confer. Paragraph (c) addresses inadvertent disclosures and waiver, and generally adopts the familiar test found in civil proceedings.

These revisions “are intended to promote fairness, transparency, and efficiency in all FTC investigations.” Their degree of success will largely depend on the participants embracing the meet and confer sessions and using those sessions to their best advantage.

B. Jay Yelton III leads Miller Canfield’s Electronic Discovery + Records Management team, which specializes in the design and implementation of records management programs, litigation readiness plans and e-discovery strategies. During the last 15-plus years, in response to litigation and government investigations, Jay has gained extensive experience assisting Fortune 500 corporations, governmental agencies and other organizations design and defend effective discovery plans and to implement and manage those discovery plans from start to finish. He regularly conducts educational and training seminars on records and discovery management topics for in-house legal and IT departments, bar and trade associations, and state and local municipalities. He has also written for, and been quoted in, numerous state and national publications on records and discovery management topics.


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