In addressing the discoverability of social media, we typically analyze three questions: Is social media relevant to the claims or defenses at issue in your litigation? If so, is it within your possession, custody or control? If so, is there anything else that may preclude or limit discovery of social media content?
In a previous post, we took a look at the threshold question of relevance. Here we look at an increasingly nuanced question—is information on a social networking site within your possession, custody or control?
As with the question of relevance, new technology should not overcome common sense. The question is the same whether the discovery request seeks a paper document or a Facebook post. Under Federal Rule of Civil Procedure 34(a), parties may discover “items”—documents, electronically stored information or tangible things—that are within the opposing “party’s possession, custody or control.” State procedural rules permit similar discovery.
What electronic information is within a party’s “possession, custody or control” varies depending on the nature of the information being sought, where the information resides and who has the ability to access, add, delete or modify the information.
The analysis is relatively straightforward when the party from whom discovery is sought also is the user (owner) of the social media account in question. As stated by Magistrate Judge Paul W. Grimm, “control” has been viewed “broadly” as “the legal right, authority or practical ability to obtain the materials sought on demand.” Users of a social media account have the ability to access and modify their social media content. As such, a social media user will be deemed in possession, custody or control of his or her own social media content.
But the question can be more complex than identifying the owner of the content. While a company may have its own branded social media accounts, it may also encourage, support, or at least allow, an employee’s use of her own social media account for business purposes. Just pick up any newspaper and you will see reporters seeking Twitter followers or inviting readers to continue the discussion on a more personal blog.
When determining whether a party has possession, custody or control of potentially relevant social media, among other things, a court may consider: (1) whether the social media content resides on the party’s own Web server, or on a third party’s Web server; (2) whether the party has “the ultimate authority, and thus control, to add, delete or modify” the social media content; and (3) whether the party has “control over access” to the social media, such as the ability to “unilaterally block access.”
A related question is whether an individual who has access to view, but not modify or delete, social media has sufficient possession, custody or control. An example would be an individual who is friends with another individual on Facebook. Such a user may have the ability to view the entirety of his or her friend’s social networking profile, but even that ability may be modified by their “friend.” At least one court has taken the view that a party may have to produce social media which it can access but cannot modify or delete. The court compelled a Facebook user to produce all photographs that she posted on her Facebook profile and all photographs posted by other Facebook users in which she was tagged and to which she had access.
A more difficult question is whether an employer (e.g., corporation) has control over content posted by an employee on an external social media website, such as Facebook or Twitter, while the employee is at work and using a work computer. At least one court has concluded that a corporation does not have control over relevant social media where the information is on a third party’s server and not accessible by the company. Indeed, an employer may argue that its employees retain sole control over social media accounts accessed via websites not hosted by the employer, such that the employer does not have possession, custody or control.
If, however, an employer has access to material posted by an employee on an external social media website—such as a cache copy of social media activity on a company computer or on the company’s network server—then it is possible that the employer could be deemed in possession, custody or control of that social media and be required to preserve and produce it. Ironically, this may be more likely to arise as an issue where a corporate policy permits occasional personal use of company-owned devices but also provides that an employee has no expectation of privacy in the use of company-owned devices.
Ultimately, whether someone is in possession, custody or control of potentially relevant social media will be a fact-intensive analysis.
Finally, in addition to social media content, parties may seek discovery of related information, such as social media activity logs (login times, dates and times of modifications, etc.). Internet service providers (ISPs) that host social media websites will be in possession of such information and have access to the actual social media content, making them an ideal target for social media-related discovery. ISPs cannot share user information without limitation, however, and in some circumstances cannot provide user information to a third party without user authorization.
We will take a look at this and similar issues in an upcoming post exploring fundamental #3—is there anything else that may preclude or limit discovery of relevant social media content?