Social Media, eDiscovery and the Federal Rules of Civil Procedure

Contributed by Pierre Chamberland (Tuesday, June 15, 2010) | Category : eDiscovery

Fortune Magazine reported earlier this year [that] 79 percent of the United States' best companies use at least one of the most popular social networking services on the web to interact with customers. As often happens in the corporate world, smaller companies have followed suit and started using Twitter and Facebook to expand brand visibility and expand their customer base.

However, workers of these companies also use social media to interact with each other. As such, it is becoming increasingly important that organizations adopt measures similar to email archiving policies to prevent potential issues or punishment from regulatory authorities, should any of this correspondence become public.

Moreover, eDiscovery must change accordingly. Kathy Owen, a partner at law firm DLA Piper, recently told Compliance Week that eDiscovery users must change the way they store information. Meanwhile, eDiscovery vendors must begin implementing social media search methods into their solutions to help their customers adapt to the changing technology.

"The old ways of addressing electronic discovery and preservation don't necessarily work when it comes to social media," Timothy Gordon, a partner with law firm Holland & Hart, told Compliance Week. "You have to think about it in a new way."

It is especially important that solutions are equipped with new features as the social media platforms used by companies are programmed differently. So the solutions have to be designed to navigate both, according to Gordon.

"You can't necessarily take that content and put it in another system in a way that it looks and works the same way that it does when you're on Facebook," Gordon said.

"Because each of these social networking sites is different, there's really no one-size-fits-all solution to preservation, collection or review," Gordon continued. "They're all different, and they all have to be addressed in different ways."

In 2006, the Federal Rules of Civil Procedure were updated to include electronically stored information. While most believe social media fits into that category, there are currently no regulations that mention it. Owen thinks this is an especially dangerous issue because judges are forced to apply eDiscovery rules created for email and instant messaging to an entirely different form of communication. The medium used to communicate does not make the forms of correspondence the same, according to Owen.

She cites Crispin v. Audigier, a copyright case in California where a judge ruled messages sent through Facebook or MySpace that are not public on the websites, are protected under the Stored Communications Act, which means they cannot be subpoenaed in civil litigation. The party seeking the information needed to issue a subpoena to the companies themselves in hopes of using the evidence in court.

However, this ruling was eventually overturned by a superior court judge, who found that because the websites are used for purposes similar to email, they are subject to the same legal protections. Owen and Gordon did not express whether they agreed or not with either ruling. According to Compliance Week, though, they both feel that there needs to be a federal court ruling to prevent future gray areas that could make companies liable for lost correspondence or inappropriate communication between employees.

Earlier this year, the Wisconsin Law Journal reported that ONTRIAL Technologies' president Bruce Olson urged his colleagues to take social media into account when piecing together their archives of interoffice correspondence. He believes organizations should do so now to prevent feature issues as regulatory authorities consider formalizing the requirements of social media archiving and cases get closer to state and federal Supreme Courts.