E-Discovery

Things a Little Birdie Told Me: The Implications of Twitter and other Social Media in E-Discovery

by Elluma Discovery

Facebook, Twitter, and a growing number of social media sites have taken over our lives. Whether Tweeting about the Kardashians or ranting over the latest brouhaha between Snookie and “The Situation,” we spend an inordinate amount of time behind our keyboards participating in our virtual lives. Aside from possibly contributing to the obesity problem in this country, social media have influenced every aspect of daily existence. Their influence is so great that a recent New York court decision by Judge Jeffery Arlen Spinner may give social media junkies more to worry about than just an expanding waistline.

The pressing question in Romano v. Steelcase, Inc., centers on an e-discovery request in a personal injury action. Steelcase requested all current and historical Facebook and MySpace pages maintained by Romano. They argued that her Facebook pages contained information that disproved her claim of loss of enjoyment of life and revealed information about the nature and extent of her injuries.

In addressing both relevance and privacy questions, Spinner ultimately held that Steelcase had a right of access to Romano’s pages-including the areas that she intentionally segregated as private. If Spinner’s well-reasoned decision finds favor in other jurisdictions, businesses and individuals alike may want to take note.

By participating in social media, we are injecting bits and pieces of our lives into the public realm. These bits and pieces may later come back to haunt us when a conflict arises. In Romano’s case, the bits and pieces conflicted with her claim of injury, but they could just as easily prove troublesome in a divorce or a wrongful termination suit. The bottom line is that social media have become part of the e-discovery world and we must deal with them.

For litigators emerging media often bring with them a landscape fraught with uncertainty. Notwithstanding the fluidity of the e-discovery rules, we can glean several points from Judge Spinner’s decision:

* Attorneys should include searches of public profiles on social media sites for all parties as standard practice in all cases. * Information that is both material and necessary to the party’s case is likely to be discoverable. * As long as the postings on a party’s public pages support a reasonable inference that the private pages may contain relevant information a judge is likely to order production of private pages.

* Deleted and historical pages on social media sites are likely to be fair game for e-discovery where they are likely to lead to the disclosure of admissible evidence.

As these new forms of interaction become ubiquitous, we tend to lose sight of the line that divides personal and public worlds. When clients inadvertently disclose personal information, it has the potential for serious consequences. Keeping that in mind, attorneys should explore the implications of social media sites to their cases well before their opponents do.

Elluma Discovery (http://computerforensic.com) provides computer forensics, electronic discovery, forensic data recovery, forensic analysis and computer expert witness services.

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