Bermudez, Victor - E-Discovery of Social Media: Electronic Discovery Process

Information Governance

Getting your electronic house in order to mitigate risk & expenses should e-discovery become an issue, from initial creation of ESI(electronically stored information) through its final disposition.

Identification

Locating potential sources of ESI & determining its scope, breadth & depth.

Preservation

Ensuring that ESI is protected against inappropriate alteration or destruction.

Collection

Gathering ESI for further use in the e-discovery process (processing, review, etc.).

Processing

Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.

Review

Evaluating ESI for relevance & privilege.

Analysis

Evaluating ESI for content & context, including key patterns, topics, people & discussion.

Production

Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms. 

Presentation

Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.

Collection options

• Download archive from site
• Collection tools – X1 Social Discovery
• Print

Considerations

• Metadata
• Production format
• Admissibility

Click here for the American Bar Association's guide on the collection of social media content for electronic discovery

D.O.H. v. Lake Cent. Sch. Corp., No. 2:11–cv–430, 2015 WL 736419 (N.D. Ind. Feb. 20, 2015).

• Bullying Case where judge ordered plaintiff to produce any profiles, postings, messages, or status updates that reveal, refer, or relate to any emotion, feeling, or mental state
• Produced 85 pages of redacted material, but did not include all categories of information that Facebook permits users to download
• Later produced 1,415 pages, which was over 75 percent redacted and included approximately 1,000 fully redacted pages
• Ordered to produce a log for any information withheld as outside the scope of relevance

Largent v. Reed, 2011 WL 5632688 (Pa. Ct. Com. Pl. Nov. 8, 2011).

• Automobile Collision case
• “We will thus allow [defendant] access to [plaintiff’s] Facebook account to look for the necessary information.”
• “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because [plaintiff’s] profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.”

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).

• “Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.”
• “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.” 

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF (D. Nev. June 20, 2012).

• Product liability - airbags
• Plaintiff shall upload onto an electronic storage device, all information from her Facebook and MySpace accounts
• Plaintiff shall provide Defendant’s counsel with the electronic storage device, and an index of redacted social networking site communications
• Defense counsel may review downloaded material and identify material that defense counsel believes is discoverable, but was withheld from Plaintiff’s production
• Defense counsel is not permitted to disclose this material to anyone, with the exception of counsel’s support staff as necessary

Access: In Camera? Yes, for privilege:

In re Milo’s Kitchen Dog Treats Consol., Cases, No. 12-1011, ---F.R.D.---, 2015 WL 1650963 (W.D. Pa. Apr. 14, 2015).

• Food safety class action - chicken jerky
• “Out of an abundance of caution” in camera inspection of claimed privileged documents.

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012)

• Slip and fall
• I decline the parties’ alternative suggestion that I conduct an in camera review of Plaintiff’s private Facebook postings. “Such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance.”

Access: In Camera? Yes, for relevance:

Douglas v. Riverwalk Grill, LLC, No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D. Mich. Aug. 24, 2012)

• Employment discrimination case with in camera inspection of “literally thousands of entries.”