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eDiscovery Trends: Facemail and eDiscovery

Email is dead.

So says Facebook founder Mark Zuckerberg.  “It’s too formal,” he declared, announcing his company’s new messaging service last week in San Francisco.

Facebook announced last week that it’s rolling out a new messaging system, including chat, text messaging, status updates and email (surprise!).  Zuckerberg touts it as a way of bringing messaging systems together in one place, so you don’t have to remember how each of your friends prefers to be contacted.  Will the integrated product (informally dubbed “Facemail”) that some have called “Gmail killer” be a serious threat to Gmail, MSN and Yahoo Mail?  Maybe.  With 500 million plus users, Facebook certainly has a head start towards a potentially large user base.

However, some caveats to consider from a business standpoint:

  1. Facemail messages will be clustered by sender instead of by subject, which they consider to be “antiquated”.  May be great from a social standpoint, but not so good when you need to follow the thread of a conversation with multiple people.
  2. Unified messaging is not an entirely new concept.  Just last year, Google introduced Google Wave, designed to “merge key features of media like e-mail, instant messaging, wikis, and social networking”.  Earlier this year, Google announced plans to scrap Google Wave after it failed to gain a significant following.  It will be interesting to see whether Facebook can succeed where Google failed.
  3. From an eDiscovery perspective, the potential concern is that Facebook plans to preserve these messages, regardless of the form in which they are generated, forever.  So, if your company has a retention policy in place, these communications will fall outside of that policy.

Is it time to panic?  It might be tempting to overreact and ban the use of Facemail and other outside email and social media sites, but that seems impractical in today’s social media climate.

A better approach is to have a policy in place to govern use of outside email, chat and social media that covers what employees should do (e.g., act responsibly and ethically when participating in online communities), what employees should not do (e.g., disclose confidential information, plagiarize copyrighted information, etc.) and the consequences for violating the policy (e.g., lost customers, firings, lawsuits, etc.).  We will talk more about a social governance policy in an upcoming post.  In the meantime, here is a reference to our September post for information on requesting information from Facebook via civil subpoena.

So, what do you think?  Does your company have a social governance policy?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – So, what happened to the architect behind Google Wave, Lars Rasmussen?  He just joined Facebook.  Interesting, huh?  🙂

eDiscovery Case Law: Discovery Compelled for Social Media Content

Discoverability of social-media usage continues to be a hot topic for eDiscovery.  Information for litigants’ LinkedIn, Facebook, Twitter and MySpace accounts can be the “smoking gun” for litigators looking to pursue or defend a claim.

In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), defendant Hummingbird Speedway, Inc. sought to compel discovery of the plaintiff’s social network account log-in names, and passwords.  A copy of the opinion granting that Motion to Compel is available here.

The plaintiff was allegedly injured during a stock car race in the summer of 2007.  During the litigation that followed, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts – to which the plaintiff objected, arguing that the information was confidential.  Based on information in the public sections of the plaintiff’s social network accounts, the defendant filed a Motion to Compel.

In his opposition to the motion, the plaintiff argued that communications with friends via social media sites were private and protected from disclosure. The court disagreed, indicating that the plaintiff was essentially asking the court to recognize an evidentiary privilege for such communications, but that there is no “social media privilege” recognized by Pennsylvania’s court or legislature.

The court also noted that those communications were not privileged based on “Wigmore’s test for privilege”, which requires the plaintiff to establish four factors:

  • “His communications originated in the confidence that they would not be disclosed”;
  • “The element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties”;
  • “Community agreement that the relationship must be sedulously fostered”; and
  • “The injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation”.

Because the plaintiff failed to establish these factors, the court ultimately ruled that “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted”.

So, what do you think?  There have been other cases where the discoverability of social media was called into question – have you experienced any?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – For those (like me) who didn’t know what the word “sedulously” meant, I’ve provided a link to the definition above… 🙂

Social Tech eDiscovery: Facebook Subpoena Policy

As President and CEO of Trial Solutions, I’ve noted and embraced the explosion in use of social technology over the past few years (Trial Solutions has a Facebook, Twitter and LinkedIn page, and this blog, with more to come soon). According to new statistics from Nielsen, social network sites now account for 22.7% of time spent on the web, a 43% jump in one year (by contrast, email only accounts for 8.3%). With that explosion in social tech use, companies have had to address social media as another form of media to collect for eDiscovery. It seems there’s a new article or blog post online every week on the subject and there is a social media webinar at Virtual Legal Tech this Thursday.

As probably the most popular social media site, Facebook is one of the most likely sites for relevant ESI. There are already a number of stories online about people who have lost their jobs due to Facebook postings, such as these. There is even a Facebook group to post stories about Facebook firings. Oh, the irony!

Naturally, cases related to Facebook eDiscovery issues have become more prevalent. One case, EEOC v. Simply Storage Management, resulted in a May ruling that “SNS (social networking site) content is not shielded from discovery simply because it is ‘locked’ or ‘private’”. So, request away!

If the employee resists or no longer has access to responsive content (or you need to request from their online friends through “Wall” posts), you may have to request content directly from Facebook through a subpoena. Facebook has a Law Enforcement page with information about serving civil subpoenas, including:

  • Address for Registered Agent (to process requests)
  • Information Required to Identify Users – Facebook user ID (“UID”) or email address
  • Fee for Processing ($500, plus an additional $100 if you want a notarized declaration)
  • Turnaround Time (minimum of 30 days)
  • Fee to Expedite Responses ($200)

Obviously, fees are subject to change, so check the page for the latest before serving your subpoena.

So, what do you think? Have you ever needed to file a subpoena on Facebook? Aware of other case law related to Facebook eDiscovery? Please share, or let us know or if you’d like to know more about a particular topic.