It’s been more than 15 years since e-mail began to enliven (or blight, depending on your perspective) the discovery process. By now — despite some notable fiascos (see, for instance, here and here) — we’ve got well-established case law to guide lawyers and their clients in e-mail production. Too bad that’s yesterday’s means of communication. Today it’s all about Twitter, Facebook, and Google+, whatever that is. So to celebrate establishing a Twitter account for On the Case (@AlisonFrankel), I figured I’d look at the e-discovery frontier of social media.
The news isn’t very good. What little consideration the courts have given to social media discovery has been in the context of postings by individuals, not corporations. And all signals indicate that social media data is broadly discoverable. As Gibson, Dunn & Crutcher explains in its just-published e-discovery report, courts continue to find that when you post to Facebook, Twitter, or their equivalents, you give up the expectation of privacy, even if you’ve sent private messages or set up restrictions on who can see your profile. Judges are increasingly likely to order litigants to provide access to their social media accounts and to preserve their posts. In May, for instance, a Pennsylvania state court judge ruled that a personal injury plaintiff had to turn over even his private Facebook posts to the defense.
It’s no giant leap from that kind of ruling to a looming problem for businesses. As corporations venture into social media to promote their brands and reach out to clients and customers, they have to be prepared to face the same discovery demands. In late July, a Symantec flash poll of 1,225 information tech executives reported that “social media incidents” — such as employees posting confidential corporate information – cost businesses an average of $4.3 million, of which more than $650,000 was attributed to litigation costs. That’s just the beginning, though, according to Symantec, which says corporations face increasing risk of scrutiny for their social media posts. E-discovery of such posts is a certainty, according to Symantec. (Caveat emptor: Symantec has an ulterior motive for predicting social media e-discovery doom. On Monday the company introduced a new version of its e-mail archiving software that includes social media archiving as well.)
But Symantec isn’t alone. The tech consulting firm Gartner has said that by 2013, “half of all companies” will have faced e-discovery demands for material from social media sites. Social media e-discovery precedent is “a patchwork,” Gartner says, and there’s no reason to expect “clear guidance from courts or regulators in the near future.” Gartner analyst Debra Logan (who didn’t respond to my request for an interview) warned, “In e-discovery, there is no difference between social media and electronic or even paper artifacts. The phrase to remember is ‘if it exists, it is discoverable.’” (In a prescient post in January, Sheppard Mullin’s e-discovery blog wrote about Citigroup’s pioneering program to archive Twitter data as it moves to Twitter-based customer service.)
So what does the prospect of untold reams of social media discovery material mean for lawyers? The same kind of information-overload headaches lawyers faced at the dawn of e-mail discovery, according to Ian Wilson, the CEO of the e-discovery software company Servient. (Wilson is also a lawyer.) Wilson posits a nightmare scenario of lawyers being forced to plough through spools of Twitter posts — not just official corporate postings, but, in all likelihood, posts by corporate employees who may not even realize their material is discoverable — to find Tweets that are potentially related to litigation. (Wilson said Servient can ease the pain with software to help lawyers screen out irrelevant posts.)