August/September 2013
Jodi Vickerman, Kroll Ontrack
The benefits of social media are considerable, but there are risks associated with their use for marketing or inter-company communication. Social media sites are gold mines of evidence for data investigations and litigation. Uniform standards with regard to discoverability, preservation, collection and authentication have yet to emerge.
While courts are generally settled that social media is discoverable, case law is undecided as to when and under what circumstances. Many state and federal courts have dismissed social media privacy claims, reasoning that voluntarily posting an array of personal information to a website precludes any expectation of privacy. While most case law suggests greater permissiveness for social media and a strong likelihood that privacy concerns will be outweighed by the relevance of the information, a clear standard has yet to emerge. Until such a standard emerges, organizations should anticipate such requests and have a plan in place.
Since data from social media is generally discoverable, all discovery obligations apply, including the duty to preserve. Regardless of the collection method, it is imperative to document the process thoroughly and obtain the user’s consent or a court order before collecting. Usually production of social media data involves the user of the site, not the social media companies.
Authenticating evidence from social media sites is a growing issue. Legal professionals often have to take measures to eliminate the possibility that someone other than the account owner posted the information.
No comments:
Post a Comment