In 2013, you may need to think twice before deleting your Facebook or Twitter records. Last year saw a number of landmark cases that have shined a spotlight on social networks and their role in discovery issues in litigation.
We saw cases where insurance companies used photos published on private Facebook accounts to prove that insurance claimants were lying about their injuries. We saw instances where password-protected Twitter accounts were subpoenaed by law enforcement to provide evidence of defendants’ alleged activities. In all cases the courts were asked to decide novel questions of what types of electronic media had sufficient expectations of privacy and what obstacles litigants needed to overcome to proceed with discovery.
When it comes to discovery, you can get a court order to enforce a discovery request so long as you can convince the court that the information you are seeking is relevant to the case. This is usually an issue that major companies face because in business there are corporate records, communications, faxes, and the like that need to be produced in corporate litigation. For private citizens and small businesses, this was not an issue that we faced before social media technology.
Times, They Are a Changing
But now our culture is adjusting to new technology which ensures that private citizens and small businesses will now have to worry about discovery issues in litigation. What’s interesting is that people who use Facebook and other social media platforms do not realize that by uploading files, writing status updates, messaging their friends, they are creating a record of their activities which can be discoverable in legal proceedings and that the standard for relevance when it comes to discovery is extremely low. So when you make a record of anything, it is pretty much guaranteed that it will come out in a legal proceeding.
Spoilation of Evidence
One specific issue is spoliation of evidence which penalizes a litigant, in some cases, for not keeping sufficient records in anticipation of litigation. Now suddenly everyone has the responsibility to preserve everything that they do and know even when to be careful not deleting any records or photos. This will increasingly become a tactic used by opposing council to bully a litigant into settlement.
The interesting thing about Twitter is that it becomes an issue of who owns the statements that are made online. In the Twitter case, the police department subpoenaed Twitter for the contents of an Occupy Wall Streeter’s private Twitter account. Since there was no civil lawsuit pending, the police would have needed a warrant to access an account belonging to the user. So the police department used a work-around by arguing that the account belonged to Twitter and therefore the protestor’s reasonable expectations of privacy would not be violated by a warrantless search of records maintained on his behalf by an outside party (Twitter).
The judge ruled in favor of the police based on a Supreme Court pre-internet era decision that people did not have a reasonable expectation of privacy in their financial records which were maintained as part of the banks’ “regular course of business.”
Twitter is not a bank and I fully expect this decision to be appealed. However, it raises the question of what other “private accounts” maintained for users by third parties e.g. email, blogs, etc. have a reasonable expectation of privacy or, if not, then subject to warrantless search and seizure.
Due to the large volume of data stored for every user on social networks, we will probably see some clarification on e-discovery issues this year. In either case, this is something for individuals and small businesses to keep in mind when creating any kind of record of their activities in the future.