5 Social Media Risks in eDiscovery

Social media has replaced email as our primary means of electronic communications. Since 2009, there have been more social network users than email users worldwide. Moreover, there is now more time spent on social media than email – and that amount of time continues to grow.

Meanwhile, we’re seeing a total blurring of the lines between “personal” and “business” uses of social media platforms, accelerated by the increasingly common Bring Your Own Device policy that allows employees to use their preferred mobile device for work purposes. For example, one survey found that 79 percent of respondents used text messaging for business purposes, and 32 percent had closed a business deal by text message. This same principle applies to employees’ use of popular social media networks and various mobile apps.

“In the past, we viewed email as the central form of electronic communication that needed to be collected, reviewed and produced in eDiscovery,” said Michael W. Mallory, Esq., an eDiscovery technology consultant. “That has now changed and it’s no longer just about email. Organizations now much pro-actively address social media as part of their overall eDiscovery strategy.”

Indeed, the 2015 Norton Rose Fulbright Litigation Trends Survey report found that 53 percent of litigation teams have already collected and preserved information from mobile devices. Those devices are commonly used to access social media, popular apps and all sorts of communication channels beyond email.

During a recent LexisNexis webinar, Mallory reviewed these trends in the handling of social media communications in the eDiscovery process and identified five key risks that litigation professionals need to navigate in today’s world:

1. Voicemail: Vagenos v. LDG Fin. Servs, 2009 U.S. Dist. LEXIS 121490 (E.D.N.Y. 2009)
2. Instant Messages/Text Messages: Oce N. Am., Inc. v. Brazeau, 2010 U.S. Dist. LEXIS 25523 (ND Ill 2010)
3. Skype Messages: Southeaster Mech. Serv v. Brody, 2009 U.S. Dist. LEXIS 69830 (MD Fla 2009)
4. Websites: Arteria Prop. v. Universal Funding, 2008 U.S. Dist. LEXIS 77199 (D.NJ 2008); Torres v. Lexington Ins., 2006 U.S. Dist. LEXIS 64458 (D. Puerto Rico 2006)
5. Facebook: Lester v. Allied Concrete Company (Va. Cir. Ct. Charlottesville 2011)

“These five non-email forms of electronic communications are prevalent today and they are very real risks to litigators right now,” said Mallory. “Advisory Notes to the new FRCP Rule 37 clearly state that it is important for counsel to become familiar with their clients’ information systems and digital data — including social media — to address these issues of preservation and eDiscovery.”

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This post is by Daryn Teague, who provides support to the litigation software product line based in the LexisNexis Raleigh Technology Center.