We recently discussed how preserving content from Facebook — or any other social media website — may become an issue during litigation. As promised, here is some information that may help your company prepare itself for litigation.
Although not explicitly stated in the 2006 amendments to the Federal Rules of Civil Procedure, the language was drafted broadly enough to allow a party to request social media content within the “possession, custody, or control” of a responding party. Consequently, it must be expected that social media content that is relevant to the ensuing litigation will be held to be reasonably included under the Rules and may have to be preserved.
Problems arise, however, when a company tries to preserve the ESI collected from social media sites. For example, not only do a majority of these sites contain privacy settings, which some courts have ruled prevent employers from checking them, let alone copying them, but the content on the websites are constantly changing due to changes made by users, administrators, or technical malfunctions. All of these issues, among many others, have added to the frustrations of preserving social media content. So, what are employers supposed to do?
Well, because there are so many different social media sites and all the sites use different approaches to displaying their data, there is no “one-size-fits-all” solution to resolving the issue. Generally, the means of production will have to be determined at the “meet and confer” conference. One of the more common methods, due to its simplicity, is to take screenshots of the content as it is displayed in an Internet browser or to print the content directly from the browser to a PDF.
As courts continue to recognize the importance of preserving ESI, companies should take steps to ensure that social media communications are easily discoverable including:
- Take an inventory of all the social media sites being used within the organization;
- Develop a “Social Media Policy” to be followed by your employees; and
- Use third-party vendors to capture and archive dynamic web pages.
In regard to using third-party vendors, companies should completely understand the services offered by the vendor. In most cases, the vendor will offer compliance and archiving tools for emails, IM (Instant Messaging), SMS, social media content, and other electronic communications into a single repository. By following these steps and consulting with your IT, legal, and HR departments, your company will be in a better position to defend itself during litigation.
A special thanks to Sean Gajewski for helping with this post. Sean is a third-year law student at Hofstra University School of Law. You can reach him by email at srgajewski@gmail.com. Bio: www.sgajewski.com.