Friday, November 11, 2011

Social Media and eDiscovery

Small excerpt from an ABA Journal article about Social Media and eDiscovery:

As both Crispin v. Audigier and Romano v. Steelcase Inc. demonstrate, the courts look to the privacy policies, and user privacy settings, of social media networks to help determine what information, and whether or not that information is admissible.

Both cases demonstrate that the relationship between social media and eDiscovery is both old and new, and that it is evolving as the law gains an understanding of how social media networks operate.

The relationship is old in that, like phone records and email, it is discoverable. It is new in that information contained on social media networks can be both public and private. In other words, social media networks are a hybrid of an open network and a “walled garden.” Some information is readily accessible by the public, including lawyers, judges and potential jurors, while other information is accessible only to parties who have been given permission. Knowing the difference, and how social media networks separate their “public” information from more “private” information, is increasingly important.

In Crispin, for example, the court held that the Stored Communications Act (SCA) protected messages on Facebook and MySpace that were not publicly available. The court made the distinction between Facebook wall posts, and Facebook messages. It looked to the privacy settings of Facebook to help make the distinction because a user’s privacy settings dictate what is publicly viewable, and what is viewable only to those invited. Although information posted to a Facebook wall may be public, information sent through Facebook’s private messaging system is not necessarily public.

In Romano, the court held that private messages were admissible because contradictory information was posted in the public areas of Facebook and MySpace. Public posting of contradictory information, in the eyes of the court, meant there was a reasonable expectation of relevant information being included in private messages, too. Such a conclusion is reached with an understanding of how social media networks operate, and how “public” information is distinguished from “private” information.

Although it may seem obvious how social media networks like Facebook and MySpace distinguish between “public” and “private” information, it may not be as obvious with other networks, like Twitter or Google +.

Twitter, too has a private messaging system, called Direct Message. Unlike Facebook’s private messaging system, however, it is limited to 140 characters. Twitter also allows its users to make profiles public, or private. In the parlance of Twitter, private accounts are “protected” and only followers approved by the account creator can see tweets, send tweets and send Direct Messages. For many, Twitter is not as intuitive as Facebook, or LinkedIn, and as a result, may be overlooked or ignored all together. However, it shares similarities with other social media networks, such as email notifications when a private message is received.

Google + is organized around Circles, or groups of people separated into default categories, or categories created by the user. Information can be shared with all of a user’s Circles, some, one, or even publicly. And like Facebook, a user can choose what profile information is publicly viewable, and what information is viewable only to those in Circles. Comments are threaded, and a user can control email notifications for a variety of actions, like if the user has been added to a circle, mentioned in a comment or if another user has shared a post. All of those actions have some impact on eDiscovery, and knowing the various settings is beneficial.

If you’re an avid user of social media and know how it operates, it’s important to remember that not every court, nor every lawyer, has an understanding of how social media networks operate, and how, or if, “public” information is distinguished from “private” information. If you’re not using social media, then gaining such an understanding is increasingly important.

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