Gibson-Dunn: Privacy, social media among topics in eDiscovery thus far

Contributed by Roumiana Deltcheva (Mardi, 27 juillet 2010) | Category : eDiscovery

A report from law firm Gibson-Dunn detailing eDiscovery practice in the first six months of 2010 found the use of social media and privacy rights as some of the overlying trends for the technology. Specifically, cases involving an employee's expectation of privacy while using company-owned communication tools highlighted some of the eDiscovery policy changes between January and June.

The cases demonstrated the growing trend of employee misuse of company property and whether or not they can be punished based on correspondence found on these devices. Furthermore, the United States Supreme Court hesitated to make a clear ruling regarding its policy on emerging technologies such as social media or text messages.

A police SWAT team member in Ontario, California was fired for using his police-issued pager, which has text messaging capability, to send personal messages, even as no policy prohibiting the practice existed. The Supreme Court ruled his privacy was not violated as employees have no expectation of privacy when using computers, mobile phones and other items owned by their employer.

"Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior ... At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve," Supreme Court Justice Anthony Kennedy wrote.

In terms of social media, a recent child custody case involved the citation of evidence discovered on the child's profile page as proof of negligence. Furthermore, a student suspended for creating a Facebook group "successfully claimed her free speech rights were violated," as her actions did not come on school grounds.

The use of eDiscovery solutions on social media pages has been advised by many experts throughout 2010 as they learn of new rulings supporting social media content as evidence in criminal cases. Bruce Olson, president of ONLAW Trial Technologies in Wisconsin, regularly advises companies or law firms to use their eDiscovery solutions on social media pages to help build their cases and amass evidence, as the trend is for judges to allow it.

However, no court in the U.S. has issued a ruling requiring parties to archive social media content, according to Gibson-Dunn. Still, many law firms have advised it be archived to prevent any future issues and help in any potential litigation.