Let’s take a look at an actual case where presenting social media for e-discovery was put to the test by the courts via ELLBLOG, an “eLessons Learned” compilation of real cases and the subsequent eDiscovery lessons learned. A recent post, “No ‘Social Network Site Privilege’ Has been Adopted by Our Legislature or Our Appellate Courts,” is a perfect example of how the illustrious idea that our Facebook information is “private” can be put to rest. The court ruled the information not privileged and ruled access must be “freely granted” during discovery.
Here’s the story: Bill McMillen, Sr. was rear ended in a stock car race in 2007 by Defendant Wolfe. McMillen then filed a lawsuit for the following alleged injuries: “possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.”
The question for the defendant then became, is he really that injured? Public Facebook posts seemed to prove otherwise. In 2010, the defendant filed an order requesting access to the plaintiff’s Facebook and MySpace accounts based on public comments referencing a trip to the Daytona 500 and fishing trips. The court declared the documents relevant to the litigation and therefore the materials were discoverable. Although there was some push back by the plaintiff claiming this was personal communication between friends through private messages and should therefore be deemed confidential, the court stated “No ‘social network site privilege has been adopted by our legislature or our appellate courts.”
Moral of the story? Your communication exchanges through Facebook and other social networking sites, even in private messaging, are discoverable if relevant to the case. At least that was the case with this particular example in Pennsylvania court. Although some state courts differ as to what is deemed discoverable, social media within the e-discovery realm is daunting new territory for everyone.
Best advice? Implement a social media policy for your company and archive your social media data!