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Some strategies for using social media sites during discovery are better than others. A recent case out of New York sheds some light on the question.

The Best Way to Conduct Discovery into Social Media?

Some strategies for using social media sites during discovery are better than others. A recent case out of New York sheds some light on the question.

4 comments

  1. Facebook has come under fire for a number of privacy “violations” (at least from the perspective of some of their users). Facebook usually responds to these complaints (at least when they reach the public eye) and makes modifications to their service to correct or prevent the problem.

    While I am a Facebook user, I am not a huge fan of the company or the idea that an organization controls as much personal information as they do (even if people give it to them “voluntarily”). However, I do believe that the company takes these privacy concerns seriously and that they do not want to appear to be either intrusive or government stooges. I think this is supported by the note in your blog that Facebook has argued that the Stored Communications Act has prevented them from making certain disclosures (particularly, I assume, with respect to civil litigation).

    All of this leads me to the conclusion that the Romano route might be effective at achieving the goal you describe, but only in the short term. If (or when) this becomes a popular route taken in litigation, I am confident you will see Facebook respond for at least two reasons.

    First, the court is basically asking them to provide a service without compensation (i.e., give us this information because we have forced your customer to request it). Even if the intervention (human and/or machine) required on Facebook’s part is minimal, it is nonetheless work they are “required” to do without compensation. Thus, they are not motivated to do it. I do not think there is any kind of secondary compensation argument to be made here either (e.g., Facebook would be happy to do this because it gives them a good public image). Even non-defendants will probably think to themselves, “boy, I’ve put some things on Facebook I regretted – that’s why I deleted them – I wish they would refuse to release that stuff.”

    Second, as noted above, Facebook seems to take privacy concerns seriously, at least when they reach the public eye. When people find out that Facebook is storing their “deleted” material and providing it to the courts, people will be upset. Upset users means reduced advertising money for Facebook. They will be motivated to fix this.

    As a result, I foresee Facebook taking some action in response to this. Who knows, they might even go so far as to remove their own ability to provide this information.

  2. Jason: You make a good point. I have no idea how much it would cost FB in terms of man hours to provide this kind of information, but if the Plaintiff’s signed authorization is combined with a subpoena duces tecum, then that’s all governed by state statute at that point. If Facebook did have a bonafide dispute over compensation and the cost was potentially high enough to make it worth fighting over, then it would end up being decided in a court on a motion to quash. For that reason, if Facebook tried using cost as a pretense, I don’t think it would get very far.

    Your second point is an interesting one. I get the impression that deleting information off of Facebook is actually kind of difficult for them to do. See here:

    http://gawker.com/5661393/facebook-delete-can-take-16-embarrassing-months

  3. I find it interesting the way courts think that they “own” the internet. I guess it could be construed the same way as wire-tapping or cell phone records, but to think they can force Facebook to give them access to something which, on its face, appears to be completely private, is sort of baffling to me.

    It goes back to a question all of us probably have asked at one point or another since the internet came about: Who the heck owns this thing and how is it regulated? I’m still not sure there’s an answer. Do ISP’s need government licenses much the same way phone companies, broadcast towers, and railroads do to effecuate their lines of commerce? And what is this agency? I’ve yet to see the terms “FCC” and “internet” in the same sentence. Until we clearly define who’s in charge of cyberspace, I think courts should be awfully careful about ordering web services to do anything. If I’m a newspaper reporter and I have inside information about a party in a big case and the judge orders me to turn it over, I hide behind reporter privilege. Facebook might not have reporter privilege, but it surely has some level of First Amendment protection, one would think.

    I nominate Brett Clark to publish a law review article on the federal Stored Communications Act.

  4. Interesting article on topic from the Michigan Family Law Blog. http://bit.ly/gKDC3c

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