Ethics and Social Media Discovery

• Author: Brian A. Zemil
• Pages: 20-20

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

he COVID-19 pandemi c has transformed our

profession into a virt ual practice reliant on technol -

ogy. This change af fects how we engage in educational

programs that en hance our legal experti se. The ABA

Section of L itigation’s recently held Virtua l Section

Annua l Conference provided a s afe platform to learn from lead-

ing experts ab out pressing legal issues regardi ng trial advocacy

and litigation strate gy. With technology and social med ia driv-

ing the ow of inform ation, the timely seminar “Trendi ng Now

More Than Ever: Soci al Media Ethics and Litig ation” (May 5,

2020) discusse d best litigation practices in t he context of social

media discovery.

The program beg an by explaining the ethi cal principle

that all lawyers a re subject to the fundamental comp etency

requirement expres sed in ABA Model Rule 1.1. “Competence”

includes an obligation to und erstand the risks and benets of

technology and to keep abre ast of changes to properly advise

clients. The level of nec essary knowledge corresponds to the

needs of your clients. For ex ample, “the regular lawyer doing

family law in Ha hira, Georgia, may not have kept up with

the latest in soci al media and technology, and yet that law yer

has an obligation to be compe tent in guiding a client about its

use and about how to use it in dis covery,” explains panel ist

Paula J. Frederick, Atl anta, GA, chair of the AB A’s Standing

Committee on Profession al Regulation.

Social medi a giant Facebook is a fertile source of d iscovery

triggering comp etency-related issues. “Right now, if you look

at social media , the monthly active users for Facebook is 2. 6

billion, and the worldw ide population is 7.8 billion. Roughly

a third of us are on soc ial media. With coronavirus , there’s

been an uptick of workers at home spend ing more time at their

computers with 15 to 20 percent on so cial media,” observes

another panelist Ju lie Lewis, Santa Clar a, CA.

With this backg round, the moderator, Richard C. Dougl as,

Chicago, IL , presented a Facebook-related discovery disput e

hypothetica l. The defendant in a wrongful ter mination suit

requested production of t he plaintiff’s Facebook account login

records, which al legedly contained employment-related admi s-

sions. The plaint iff refused, claimi ng lack of relevance and con-

trol over the account infor mation under Rule 34 of the Federal

Rules of Civil Proc edure.

“In terms of relevanc e, the claims here are based in pa rt on

information th at the plaintiff says that they saw on Facebo ok.

Some of the core issues i n the case really are about Facebook

content, so that’s probably going to establ ish a sufcient nexus to

create some relevance,” opines pa nelist Lauren E. Schwart zreich,

New York, NY, cochair of the AB A’s annual National I nstitute

on E-Discover y. There also ex ists a “possibility that the wage

and hour claim rai ses a potential relevance claim b ecause there

may be records withi n the Facebook account that show when

the plaintif f was accessing the account and whet her the plaintiff

actually enga ged in compensable work activity for which she

seeks payment throug h her lawsuit,” she adds.

Attorney competen ce requires a working knowledge of who

has possession, c ustody, or control over social media informa-

tion. “There is a split a mong jurisdictions as to what standa rd is

required to establi sh control. Some jurisdictions say a pa rty must

establish that th e producing party had a legal rig ht to obtain the

information upon reque st. Other jurisdictions say th at it would be

sufcient to show that t he producing party had the pract ical ability

to obtain the in formation upon request,” expounds Schwart zreich.

To better understand t he control analysis, the panel pointed to

a decision addressi ng a web-based account, Arteria Property Pty

Ltd. v. Unive rsal Funding V.T.O., Inc. There, “the cour t focused

on the user having t he power to delete content despite the presence

of an intermedia ry when posting content on the web. Ulti mately,

the court found t hat the defendant had the ultimate authorit y to

control the website’s content, so control was e stablished because

the account holder l argely controls the content on the ac count,

including deletion of i nformation,” notes Schwartzreich.

It is equally impor tant to understand social med ia terminology.

In the hypothet ical, the plaintiff ass erted that she deactivated her

account. “Lawyers n eed to be aware when it comes to social media

that language re ally does matter. A deactivation of a Facebook

account, for inst ance, is not the same as deletion of an acc ount,”

claries S chwartzreich. “If a Facebook user de cides to delete their

account, Facebook st arts the deletion process af ter 30 days. It

used to be 14 days, but they wanted to g ive a little more time, and

this gives the us er an opportunity to change t heir mind about the

deletion process. It m ay take up to 90 days for Facebook to fully

remove the prole, and it may rem ain in backups for disaster recov-

ery. This is unli ke deactivation, which removes the user’s prole

temporarily, but they may be able to react ivate it at any time,”

denes Lewis.

Social medi a platforms also generate preservation issue s. “For

litigators, when we lea rn that social media evidence i s potentially

relevant in a threaten ed or actual litigation, it means t hat it really is

incumbent upon us to move quic kly to preserve the content and not

merely rely on an instr uction to a client not to delete the relevant

information ,” counsels S chwartzreich.

The panel concluded by hig hlighting competency as a n ever-

evolving education proce ss to understand the technology of ou r

times. To do so, lawyers should att end appropriate seminars pre-

sented by leading exp erts, keep up with changes identi ed in reliable

legal journal s, and consult with other attorneys w hen needed.

RESOURCES

Mari e V. Lim, “Social Media Co ntent: What Is It and How Do I U se It at

Tria l?,” Co mmercial & Bus. Litig. (S ept. 7, 2018).

Mat thew J. Hamilton, Don na L. Fisher & Jessic a K. Southwick, “From

Snaps to Tweets: The Cr aft of Social Media Di scovery,” Trial Evid.

(Oct. 5, 2018) .

Arteria P rop. Pty Ltd. v. Univers al Funding V.T.O., Inc., No. 05- 4 896

(PGS), 200 8 U.S. Dist. Lexis 77 199 (D.N.J . 2008).

Ethics and Social Media Discovery

By Brian A. Zemil , Litigation News As sociate Editor

20 | SECTION OF LITIGATIO N

CIVIL PROCEDURE UPDATE