United States: E-Discovery and Social Media (Tip of the Month)

Last Updated: November 4 2010
Article by Michael E. Lackey, Justin M. Dillon and John Nadolenco

Originally published October 2010

Keywords:social media, discovery request, Facebook, MySpace, profiles, privacy settings

Scenario

The Equal Employment Opportunity Commission (EEOC) files a discrimination action against a multinational organization in federal court on behalf of employees who claim ongoing emotional distress caused by a hostile work environment. The organization receives a discovery request from the EEOC seeking the production of the personal Facebook and MySpace profiles of the employees accused of the discriminatory acts. The discovery request seeks the accused employees complete social media profiles, including their status updates, wall comments, photographs and activity streams.

The Proliferation of Social Media

The use of social media such as Facebook, MySpace, Twitter, YouTube and LinkedIn has exploded over the past few years. One study found that online social media use has risen more than 230 percent over the last three years. The ubiquity of social media has made it impossible for organizations to ignore. Seventy-nine percent of the Fortune 100 companies use at least one social media platform to communicate with their customers, and 20 percent of companies are using all four of the main social technologies (Twitter, YouTube, Facebook, and blogs). Social media can increase public awareness of an organization, offer branding and public relations opportunities, increase interaction between employees and consumers, and increase productivity by enabling time-sensitive access to information.

The Legal Treatment of Social Media

Although the content on social media sites is increasingly at issue in legal disputes, the legal system has been slow to articulate consistent guidelines for its treatment in litigation. By using email and other electronic communication formats as precedent, courts and regulators have looked to the Federal Rules of Civil Procedure and other laws—such as the Stored Communications Act of 1986—for guidance. But reference to decades-old electronic communication laws to analyze issues related to cutting-edge electronic communication through social media has translated into a perplexing mix of court decisions around the country. In particular, courts have grappled with an individual's privacy concerns when weighing whether content on social media sites is discoverable.

While individuals generally believe that information posted to a social media account with privacy settings is private and protected from disclosure, those privacy settings may not prevent disclosure when the content is relevant to a litigation. For example, one court ordered the production of content from the plaintiffs' Facebook and MySpace accounts where the plaintiffs' alleged damages included emotional distress. The court noted that the privacy settings on the social media sites did not provide a basis for protecting content from discovery.

In contrast, another court shielded from discovery the content from a plaintiff's Facebook and MySpace account to the extent that the content was not available to the general public. Still other courts have found that certain types of information on a Facebook account may be discoverable, while other types—such as pictures linked from another user's Facebook account—may not.

In addition to the legal standards promulgated by the courts, organizations should be aware that regulators have also recognized the relevance of communications via social media. For example, the Financial Industry Regulatory Authority (FINRA) recently issued guidance on the use of social media sites that requires member firms to retain records of communications with customers through social media sites related to the firms broker-dealer business, just as they would for other communications. And where an organization is required to retain certain types of communications, it can expect that those communications will be discoverable when relevant to a subsequent litigation.

Best Practices: Know the Risks & Develop a Plan

The legal uncertainty regarding social media in discovery—and the lack of standardized protocols for preservation, collection and production—makes managing the risks associated with social media use a challenge. Some organizations view the risks posed by social media as too great, banning the use of social media by employees as a matter of policy. However, as with most new technologies, a complete ban on the use of social media may be impractical for most companies.

  • Understand the risks associated with different types of social media use. Use of social media can be organized into three categories, each of which presents different risks to an organization.

    • Organization-sponsored, outwardly facing sites. These sites are created by the organization to fit clear objectives. The content often creates a formal organizational presence on the social media site and is geared toward disseminating information to customers and others outside of the organization. In theory, this type of social media use is easier for the organization to control, but it presents many of the same risks associated with communications with customers through other means.
    • Internal sites and blogs. These types of social media facilitate communication within an organization. They focus on increasing productivity and employee interaction, and may create risks of discrimination or other employment-related claims.
    • Employees' personal sites. Use of this type of social media generally lacks organizational goals, but may nonetheless associate the user with the organization. Personal social media sites also give rise to the most confusion regarding privacy issues and whether the organization "controls" an employee's personal social media accounts for purposes of discovery. The risks represented by these sites include misrepresentations about the organization by the employee, associating improper conduct by the employee with the organization or revealing confidential information to the public.

  • Understand how the organization uses social media. Conduct an inventory of the social media being used by the organization and its employees, determine how they are being used and identify which are the most beneficial to achieving the organization's goals. Analyze the risks associated with social media in the context of the organization's business plan.
  • Develop policies and procedures. Develop policies and procedures that ensure the organization and its personnel comply with the applicable requirements. Policies and procedures must consider social media in the context of the organization's business and its compliance and supervisory programs. A policy should clearly identify the individual employees, teams or groups authorized to access social media for the organization's benefit and to associate themselves with the organization in their personal social media accounts.
  • Ensure proper training. Proper employee training and clear management communication are essential to the success of a social media policy. Employees must understand not only the risks presented by social media use to the organization and themselves, but also the benefits of appropriate use of this technology.
  • Enforce social media policies. An organization must enforce its social media policies and procedures by incorporating them into current enforcement and compliance programs. Enforcement of a social media policy may require collaboration among an organizations' information technology, human resources and legal departments.
  • Anticipate discovery concerns. Advanced planning can reduce the risks associated with preserving and producing information from social media sites. Develop a legal hold plan that incorporates social media and be prepared to discuss those issues with opposing counsel.

Learn more about our Electronic Discovery & Records Management practice.

Visit us at www.mayerbrown.com.

Copyright 2010. Mayer Brown LLP, Mayer Brown International LLP, Mayer Brown JSM and/or Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions