A decade ago the Zubulake case forced the legal profession to take email seriously in litigation. At that time, many lawyers still purposely avoided collecting electronic records for litigation because it was too much of a hassle. Oddly, there are lawyers today that operate under the assumption social media is an unsettled matter that can be ignored. While it’s true that there hasn’t been a truly landmark case to scare the profession into action, there is no mistaking the emerging and consistent case law in this area. If there was one clear trend in the evolving social media case law in 2011, it was that a lawyer’s social media discovery obligation is the same as for any other media
Likely the most arresting case in 2011 was Lester v. Allied Concrete Co., in which attorney Matthew Murray drew the court’s ire for telling his client to clean up potentially embarrassing material from a Facebook page. The plaintiffs in this wrongful death suit had shown particular interest in photos of Murray’s client wearing an ‘I ♥ hot moms’ t-shirt. While there may be a certain logic in his suggestion, Murray’s directions seem to indicate that he thought social media content was not subject to the same spoliation laws as other evidence. This court made it clear that deleting or ignoring social media content is unacceptable in litigation.
The other clear trend in social media case law is towards native production of evidence. It may seem absurd to an outside observer, but digital evidence is still often presented in court printed out on paper. In Griffin v. State, the court overturned a murder conviction at least in part over a failure to authenticate evidence obtained from a MySpace profile, which had been presented as a printout.
The courts also continued to confirm that social media is broadly discoverable. In Zimmerman v. Weis Markets, Inc., case further confirmed that social media is broadly discoverable. This case confirmed the earlier McMillen v. Hummingbird Speedway Inc. which established that when sharing information on social media sites there is no expectation of privacy.
Other notable cases include EEOC v. Simply Storage, which applied broad social media discovery claims to a government agency, and Largent v. Reed, which is worth reading for the long and detailed opinion on electronic discovery of social media. A potentially important pending decision is the PhoneDog case, which could establish ownership for Twitter and other social media accounts.
These cases may be some of the more notable social media-related maters from 2011, but are by no means unusual. The general trend in social media discovery is that the content is considered Electronically Stored Information (ESI) just like email and other digital data. Courts have consistently applied the Federal Rules of Civil Procedure to social media, including Rule 34(b) which requires that ESI be produced “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”
One major change, which was announced this month but has been in the works for a while, comes from FINRA, the regulatory agency of the securities industry, which issued Regulatory Notice 11-39 on the use of social media. The updated rules now clearly direct firms to apply the same record retention policies to social media as they do to any other content.
The emerging, ongoing trend continues- social media is treated no different than any other media types. That’s always been Nextpoint’s position, but it’s nice to be continually validated by the justice system.