Social Media Content Discoverable, Must Be Preserved

Lawyers have increasingly turned to social media information for evidence in civil litigation. This happens most commonly in employment disputes and personal injury matters, but will likely be occurring in future securities class actions, intellectual property disputes and regulatory investigations.

The potential of social media information to win or lose a case has led to several disputes over discoverability in civil litigation. These disputes have resulted in several key decisions that shed light on how discovery rules will apply to social media content, and companies using or contemplating using social media should take note.

It is clear that social media content is discoverable, and if you control the content you will be held responsible for it in discovery, even if the information resides in the hands of a third party service provider. Litigants are expected to overcome technical challenges associated with discovery of social media content.

Courts will also hold litigants accountable for failure to preserve relevant social media content. The duty to preserve differs from jurisdiction to jurisdiction, but in most cases, it is settled that a party has an obligation to preserve relevant information once litigation is reasonably foreseeable. If relevant information is lost after the duty attaches, the failing party may be sanctioned for spoliation.

Companies must be prepared with plans to produce their social media content when called upon to do so, and to preserve such content as they would any other form of electronically stored information.