As the realization that social media is relevant to just about every form of litigation gains critical mass, the question turns to what is the most effective discovery process to obtain production of non-public social media evidence from opposing parties
and witnesses. Public information is obviously available on the internet, but for obtaining messaging and social media posts that sit behind privacy settings or are archived, a body of case law is emerging that delineates effective as well as ineffective protocols for obtaining discovery of this information. We briefly outline here three potential approaches.
1. Direct Subpoena from Social Media Provider: The initial instinct of many lawyers is to seek production directly from the social media sites themselves though a subpoena duces tecum. However, case law strongly suggests this approach faces significant roadblocks or at best delayed discovery. For instance, in Crispin v. Christian Audigier, Inc., (2010) the Central District of California determined that social networking web sites are electronic communication services (“ECS”) providers under the law and thus any private messaging and posts on such site are subject to the Stored Communications Act (“SCA”). As a result, the court granted the plaintiff’s motion to quash subpoenas seeking private user information on Facebook and MySpace . The feedback from our law firm customers is that the social networking sites are consistently pushing back on all civil discovery subpoenas, citing the SCA.
2. Self-Production from Opponent: This method is employed through a traditional document production request. Requesting self-collection and subsequent production will not likely yield a complete data set given there is no guarantee that the opponent or third-party witness will employ best practices to preserve and collect their social media accounts. For instance, the self-collection “Download Your Information” feature in Facebook omits key information from the downloaded account and will not preserve the over 20 unique metadata fields associated with each Facebook item. As far as Twitter, it is virtually impossible to collect all the Tweets of a user without best practices eDiscovery software specifically designed for the task. As such, there are significant limitations on the value of social media data self-collected by an adversary or third party witness.
3. Production of Credentials. The emerging preferred approach is the production of username and password directly from an opposing party or witness. This approach is favored as it allows for the rapid, comprehensive and defensible collection of all data, including all available metadata fields with best practices technology once the credentials are obtained. The process was employed in Zimmerman v. Weis Markets, Inc. (2011) and McMillen v. Hummingbird Speedway, Inc. (2010), where the respective courts compelled production of the plaintiffs’ credentials after a noticed motion, but we are getting reports of the voluntary production of user names and passwords in meet and confer sessions.
We talk about these concepts and their technical implementation in further detail in our webinar on eDiscovery for Social Media with Eric Laykin, eDiscovery co-practice leader at Duff & Phelps.