True North recently talked with Ron Hedges about some of the e-discovery challenges posed by social media.
Welcome to True North, once again! Thanks for taking the time out of your busy schedule to answer some questions about social media from your unique perspective as a former US Magistrate Judge and your ongoing involvement in matters related to ESI.
There are stats that show social media use in the United States increasing by more than 350 percent since 2006. This staggering growth, as well as the proliferation of mobile devices, is challenging the legal community to reconsider existing legal paradigms of constitutional protections, the Stored Communications Act (SCA) and rules of evidence. What major trends have you seen in the focus of the courts?
A party’s social media “content” is discoverable under the liberal standard of Rule 26(b)(1), although “possession, custody, or control” under Rule 34(a)(1) might be an issue. Having said that, I do not see courts “rubber-stamping” requests for discovery of content – and what we are talking about is “private” content as, presumably, a party’s “public” content can be accessed without recourse to a discovery mechanism. What courts appear to be doing is requiring a requesting party to demonstrate why private content would be subject to discovery before allowing that discovery. This demonstration might be made based on what public content exists, what is admitted during a deposition, or what a “friend” states about private content (assuming that the requesting party has not gained access to private content in an unethical way).
The courts have also grappled with whether opposing counsel can access a producing party’s social media from the outside or from the inside with the user’s password; has a consensus emerged that users do not have to provide passwords to opponents?
Courts are looking at “access” in several ways, assuming that we are speaking of private content that includes content that is not discoverable and that raises privacy or related concerns. A court could simply require the producing party’s attorney to review content and produce whatever is discoverable. Alternatively, a court could conduct an in camera inspection of content or appoint a special master to do so. Allowing the requesting party to have direct access to an adversary’s content would be rarely allowed, although a court could compel a producing party to, for example, “friend” the requesting party. To do so, however, would various issues and I expect such an order would be extremely rare.
There has also been discussion of who is responsible for obtaining social media for production to the opponent. If historical social media is only in the hands of the entity that hosts the platform, who has to ask for the data and how should they do it?
If a party wants private content from an adversary in an ongoing proceeding, that party can simply ask the adversary to produce content rather than serving a subpoena on a nonparty. However, there might be tactical reasons to subpoena social media providers such as Facebook, for example, and there might be circumstances when a nonparty has social media content that is relevant to a proceeding. In any event, seeking content from a provider raises Stored Communications Act issues, which becomes relevant when content is being sought from a provider. The SCA operates on third-party providers (entities like Facebook) that enable social media content. As a general matter, the SCA bars disclosure of content. The easy way around the SCA is to order a litigant to produce the content of a social media account.
As social content becomes a more and more pervasive, what concerns do you believe judges have about social media in litigation?
I think that judges are concerned about “fishing expeditions” as well as protecting “private” information. The latter can, of course, be dealt with through, among other things, protective orders under Rule 26(c)(1). Such orders, which are common, allow the exchange of private, albeit discoverable, information but can restrict access to such information to adversary counsel and, if appropriate an adversary’s experts.
According to “Fulbright’s 8th Annual Litigation Trends Survey Report,” 45 percent of corporate attorneys reported having no restrictions in place on social media use at their company. There are already examples of why this is risky. What do you think the companies should be doing to protect themselves and their employees?
Corporate use of social media raises many concerns. After all, corporations can be held accountable for what their officers and employees say! First, corporations have the basic issue of governing their social media. For example, who should be authorized to create content and who should be given access to content?
Second, what should officers and employees be able to post? This requires consideration of, among other things, the development of governance policies and the possible effect of the National Labor Relations Act on a corporation’s regulation of employee postings. Can a company policy, for example, that prohibits employees from posting statements that, “damage the Company … or damage any person’s reputation,” violate the National Labor Relations Act? Yes! (See Costco Wholesale Corp., 358 NLRB 106 (2012)). Social media postings between employees on matters related to employment may be protected under the NLRA. Moreover, company policies which may restrict the ability of employees to address their employment may run afoul of the NLRA.
Third, and this might be the most troublesome, what can or should a corporation do to regulate postings by officers or employees post about the corporation on third-party social media? Can a public employee (a police officer for example), be disciplined for violating a work rule by criticizing a coworker on Facebook? Yes, at least if there is evidence that the posting raised a reasonable possibility of disrupting the legitimate interests of the police department. See Gresham v. Atlanta, No. 12-12968 (11th Cir. Oct. 17, 2013).
Any final thoughts?
Let me conclude with a few observations on all my comments: First, existing legal principles (including the Federal Rules of Civil Procedure and the equivalents among the States) encompass discovery of social media. Second, in the employer-employee context, the NLRB is creating precedent that will encompass the use of social media. Moreover, existing legal principles (such as the law of defamation) will be the measure of what may – and should not – be posted). Whatever happens in the future – barring some congressional or further regulatory action to address privacy – what is likely to be true is that, as new technologies become available, individuals and corporations – and the judicial system – will attempt to “fit” those technologies into the existing legal frameworks I discussed above.
Ronald J. Hedges is the principal of Ronald J. Hedges LLC and is of counsel to Corodemus & Corodemus. He was a United States Magistrate Judge in the United States District Court for the District of New Jersey from 1986 to 2007. He has extensive experience in e-discovery and in the management of complex litigation and has served as a special master, arbitrator and mediator. He also consults on management and discovery of electronically stored information (“ESI”). For a biography of Mr. Hedges, including publications, click here.