Relativity Fest 2017 in Chicago. October 23, 2017. Photo by Zach Warren/ALM Media.


Dealing with social media in e-discovery can be difficult—not just for technological reasons, but also the ethical quandaries it presents to well-meaning attorneys. Consider this scenario:

Sterling is a former employee of Clipper Ltd. and he is suing the company for wrongful termination. You, counsel for Clipper, know that Sterling has made some problematic comments on both company and individual social media accounts, and you feel his private accounts probably have more salacious material and possibly an admission.

So what do you do? The easiest way to get the information would simply be to friend him on Facebook, and you may consider doing so to be in the best service of your client. But that raises ethical issues that could lead to fines, sanctions or even disbarment.

At the “E-Discovery and Ethical Considerations for Social Media” panel during Relativity Fest 2017, Martin Tully, co-chairman of the data law practice at Akerman, and Philip Favro, an information governance and discovery consultant at Driven, ran through such scenarios and offered tips on how to navigate the murky, ever-expanding world of ethics in social media discovery.

Where Data Lies

At this point, many attorneys realize that important information lies on Facebook and Twitter. At the beginning of the panel, though, both Favro and Tully were quick to point out that attorneys need to expand the scope of their view on what counts as social media.

“We think of social media being on platforms, and those are powerful tools in this situation. But there’s more,” Favro said. When it comes to such messaging apps as WhatsApp, “many lawyers don’t even know that this is a source of discoverable information,” he said.

“This is an example of where technology is a few years ahead of the practice,” Tully added, saying that Facebook may be commonplace, but messaging apps are not. “Those who may be thinking, I’ve got my hard drive, I have Outlook, and I have Facebook, have to realize that this tree has more branches and keeps growing leaves,” he said.

As a result, the ethical implications are that attorneys need to understand what they don’t know—and what they can’t collect—as well as what information is actually available to them.

“Now it’s more like the Canadian system of e-discovery, where you have to identify the good, the bad and ugly up front. … Knowing this about your client upfront is critical, because the time frame where this needs to be made, you don’t have time to figure it out,” Tully explained.

Corporate messaging apps are a growing problem for discovery. Favro pointed to Blind, which allows for anonymous corporate feedback, as one particular area of concern, alongside the growing use of Slack. He ran attendees through the settings of another platform, WhatsApp, showing such features as saving to camera roll, chat backup to iCloud, and archiving all chats where users may be having information stored.

“We really have to understand, what do these applications do, how often do they keep information, and how can it be adjusted?” Tully asked. He noted that even in good-faith efforts, users might not be aware that deletion is occurring even after a litigation hold, or the opposite issue of saving data where users or counsel might not even know it exists due to a lack of technological understanding.

The Legal Issues

Tully and Favro also explored some of the legal issues that come about in social media e-discovery, particularly with respect to arguments that can and should be used in court. They noted that although an attorney’s first instinct may be to argue a right to privacy, that sort of argument has not done well historically.

Instead, Tully said, “Relevancy is a very important limiter on what social media posts you can get. Relevancy and proportionality have been the gatekeepers.”

In keeping with the recently amended Federal Rules of Civil Procedure (FRCP), he noted that it’s not a good idea “to simply knee jerk, ‘I want any and all social media information.’” Instead, it’s important to target exactly what information an attorney believes is present on a social media account, as explored in 2015′s Caputi v. Topper Realty.

Favro also pointed to FRCP 26(b)(2)(c)(i) for guidance, which stipulates that data should be sought elsewhere if it “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”

However, this means that counsel are likely to run head-first into the Stored Communications Act (SCA). Discovery counsel have now had about three decades of working with the SCA, the panelists noted, but especially in the age of social media, it’s still tough to traverse. In one important case, Crispin v. Christian Audigier, Facebook was ruled a protected agency under the SCA, and could not be compelled to turn over information.

Still, that does not mean that attorneys are not left without legal recourse. The panelists suggested seeing if the case is in a jurisdiction that could compel the owner of the social media account in question to comply. On the other side, the panelists said that those counseling clients on the account holder side can absolutely not counsel deletion of data, but adjusting privacy settings may be advisable “as long as the information stays in tact,” Tully said.

The panel also cautioned to look at mobile policies, particularly when it comes to local laws about what data one is entitled to obtain. In the U.S. Court of Appeals for the Seventh Circuit, the legal-right test is used: something is in your possession, custody and control if you have the legal right to obtain it. The Second Circuit, however, uses the practical-ability test: If you have the practical ability to get the information, even if you don’t have the legal right to get it, you are liable for it.

And all of these laws, the panel said, ultimately lead one to close cooperation with the social media party holder in question, at least when it comes to figuring out where else the data might lie in the first place.

“People use their phones and texting for business all the time,” Tully said. “If somebody tells me that, I don’t believe them, because it’s almost never correct.”

For more guidance, the panel suggested checking out The Sedona Conference’s primer on social media. Originally published in 2012, the primer is in the early stages of being updated for a new generation of social media use.