Many lawyers, both in-house and outside counsel, are hoping against hope that somehow “we don’t need to preserve ESI content on Facebook or other social media platforms.” That somehow it’s not important, doesn’t count as ESI and won’t really matter in the end.
It’s hard to see what legal framework lawyers could look to in order to absolve the preservation of social media content. Particularly the malpractice and professional responsibility implications if social media content isn’t requested from the opposing party.
(Fade to a lawyer meeting with a client)
Lawyer: “Um no, we never asked if they had Facebook or Twitter accounts much less what they said on them.”)
Client: (stares in disbelief)
The next stage seems to be a replay of “eDiscovery 1.0.” Just as most of the legal industry (including technology companies at the time) were caught off guard by the move to internet-enabled communications like email, now it is missing the move to internet-based communications like Facebook or Twitter.
This will result in sanctions. It’s already happening.