Modernizing Litigation’s Approach to Social Media

In today’s legal climate, failure to include social media as part of the discovery process can be a detrimental oversight. Likewise, failure to preserve social media content requested as part of the discovery process can be costly. The bottom line is that proper and effective engagement with social media collection could be the difference between winning and losing a case.

Social Media, Privacy and Discovery

Millions of users willingly post significant experiences and incidents from their lives on Facebook, Instagram, Twitter, Snapchat, TikTok, and others. Social media posts represent a potentially rich data source, especially in cases dealing with disability or emotional distress. Social media privacy policies provide a surprising amount of access to parties pursuing e-discovery. For instance, comments or “likes” on public Facebook posts are also publicly accessible as a matter of routine. Likewise, Facebook profile photos are always public. Even users whose own profiles are nearly completely private have little control over privacy settings applied to posts and photos by Facebook “friends” that may relate to them.

This does not mean that litigation entitles parties seeking discovery to conduct a fishing expedition of an opposing party’s entire online presence, using social media investigation software or otherwise. In Giacchetto v. Patchogue-Medford Union Free Sch. Dist., the judge ruled that a plaintiff could not be compelled to turn over the entire private section of their Facebook profile simply because their public posts included damning evidence. Instead, the Court in Giacchetto ordered the plaintiff and counsel to review the plaintiff’s private Facebook posts and turn over any relevant information as a means of complying with the general principles of discovery.

Preservation of Social Media Information

A well-established legal principle is that attorneys are prohibited from advising clients to delete private social media content from profiles subject to a litigation hold. Taking down social media posts in violation of a litigation hold can result in stiff sanctions and penalties.

For instance, in Painter v. Atwood, the plaintiff began deleting Facebook posts in response to the defendant’s discovery request for private profile data. The judge then ordered the plaintiff to turn over their Facebook login information to the defendant, thereby providing the defendant with the contents of their entire Facebook account. The plaintiff was also ordered to reimburse the defendant’s legal fees and court costs associated with discovery requests.

Due Diligence and Online Discovery

Understanding the proper utilization of online discovery is simply a matter of due diligence in client representation. SMI Aware has the experience and expertise to guide our clients to conduct social media collection properly and effectively for the successful resolution of their client’s cases.

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