Many business owners and employees believe their personal social media profiles are private and therefore off-limits to either their employer or to a court of law. In many of their recent rulings on the subject, the courts have pushed back on this assumption.
The regularity of social media for personal use has presented unique challenges in the area of civil litigation trying to adjust to the constant evolution of new technology. They also present certain challenges for their users, who may end up embroiled in litigation that brings their personal social posts into the light.
What are these 3 unique challenges of social media in eDiscovery and litigation?
Challenge #1: With social media, 'private' isn't necessarily private.
Most Americans maintain at least one social media account. They may use a personal Facebook to keep in touch with friends or family, have an Instagram account dedicated to photos of their daily lives, or perhaps use Twitter to keep up with the news of the moment. If your account is 'locked' — that is, all of your posts are listed as 'private' and only shared with designated individuals — you may be under the impression that what you type is utterly off-limits to your employer or to anyone you haven't specifically chosen.
The courts have ruled, however, that 'private' isn't the same as 'not public' in the event of litigation. If the existence of information relevant to an investigation is proven to be located on social media, a judge may grant legal counsel access to it for pre-trial discovery purposes.
Now, the legal counsel involved would have to prove that the information is relevant, and a blank request to simply comb a social media account is likely to be seen by the judge as fishing for evidence and denied. However, if it can be proven that specific information relevant to the case in question exists on a personal social media account, and the request is kept only to those specific social posts, the judge may grant the request to access your personal social media account, even if you keep your social media private.
How does this play out in real life?
Let's use the example of a woman working for a construction company building a new hotel. The hotel owners sue the construction company, claiming they were charged for higher-end finishes while the construction company actually installed low-end finishes.
The hotel becomes aware that the female employee of the construction company has social posts on her personal Facebook account, marked "Friends-Only", that help to prove the construction company knowingly lied. The judge may grant a request from the hotel's legal counsel to include that specific social media post in pre-trial discovery.
In short: when it comes to litigation, a private, personal social media account may not be so private at all.
Challenge #2: Who Legally Controls Data Housed on a Personal Device?
Many employers maintain either a "bring your own computer to work" policy, or allow employees to perform workplace duties on personal technology on their own time.
Employees may do company business utilizing personal laptops, tablets, cell phones, or other technology, and that presents a challenge when it comes to social media and litigation. Who legally controls the data housed on a personal device, if that data includes professional information or data?
Does your workplace allow employees to access personal social media accounts on company devices? If they bring their own laptops to work, is company data permanently stored on those personal devices?
There is a new trend of allowing employees to use personal devices for daily business, as it's much cheaper than having to purchase and replace new company devices as technology changes. Unfortunately, these businesses often do so without having a records retention policy in place that takes into account the serious challenges that may be faced if an employee's personal social media posting on work devices (or work stored on their personal device) becomes involved in litigation.
We've spoken about the importance of a records retention policy before, and we cannot emphasize it enough.
In short, the new trend of BYOD, or Bring-Your-Own-Device, presents serious challenges for businesses if an employee's social media use during the workday, or work stored on their personal device, contains relevant information for civil litigation.
Challenge #3: Analyzing and Reviewing Social Media Requires Creativity
Our use of social media, especially in a personal context, is unlike our use of almost any other technological tool. For one, due to its casual nature, social media tends to be rife with misspellings, acronyms, inside jokes, images that require context to understand, and more.
When an organization intends to ask for access to social media postings during the pre-trial discovery process, they are required to prove that relevant content is involved, and are more likely to have their discovery request approved if it is narrowed down only to very specific postings.
With these challenges in mind, legal counsel hoping to utilize social media postings during litigation should take care to analyze and review this particular type of ESI with its context in mind.
The biggest challenge is simply that analyzing and reviewing social media during litigation requires a creative mindset. Words are relatively unimportant in social media postings, and most users rely far more heavily on imagery or 'casual' language that may be difficult to parse for relevance.
In short, social media analysis for litigation requires a creative mindset, and the ability to utilize both linear (text-heavy) and non-linear analysis. It's important for a lawyer hoping to use social media posts as evidence in litigation to understand the ways in which social media is different than other forms of ESI.
Interested in Learning More About the eDiscovery Process?
From our headquarters in Greenville, Legal Eagle provides efficient, ethical eDiscovery services throughout South Carolina and in the Asheville, NC area as well. Whether you are currently involved in a civil litigation matter that requires the use of eDiscovery, or you're interested in taking preventative steps to protect your business from spiraling costs in the event of litigation in the future, Legal Eagle can help.
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