When Is Social Media Discoverable?

    Apr 28, 2014

    The existence of a social media account doesn’t automatically mean it’s discoverable, according to a New York appellate court’s recent ruling. In Pecile v. Titan Capital Group, the defendants requested access to the plaintiff’s social media because the information could contradict the plaintiff’s claim of emotional distress. The court denied the request, stating the defendants had not offered a proper basis for the disclosure.

    This ruling doesn’t mean social networking sites are not discoverable, though. “Courts will order production of information on social networking sites, even information that is not publicly accessible, so long as there is a factual basis for requesting such information,” clarified attorney Michael A. Frankel in a recent posting on Jackson Lewis’s E-Discovery Law Today site. “For example, a court may require production of relevant information on social networking sites if the defendant, through written discovery or depositions, has identified information that contradicts the plaintiff’s alleged claims or damages.

    Even if no relevant information appears on the public portion of social networking sites, Frankel advises parties to at least request confirmation that the other party’s counsel has reviewed and produced all relevant information on the sites. A New York District Court supported that approach in Giacchetto v. Patchogue-Medford Union Free Sch. Dist.

    Several recommendations provided in the American National Standard Implications of Web-based Collaborative Technologies in Records Management (ANSI/ARMA 18-2011) – which is based on the Generally Accepted Recordkeeping Principles® (Principles) – will help organizations be prepared to respond to e-discovery. For example, under the Principle of Availability, it says organizations should have:

    1. Service Level Agreements (SLAs) with its social media providers to ensure that the hosted content can be made accessible at any time and stored in non-proprietary and editable formats
    2. Procedures in place to ensure that hosted content is stored in a manner that is indexed and searchable
    3. SLAs with its social media providers that define how records can be searched, accessed, and made available at the organization’s request

    Well before discovery demands are made, organizations can protect themselves by following other recommendations provided for each of the eight Principles, including these given for the Principle of Accountability:

    1. Organizations should develop policies that specifically address web-based, collaborative technologies and social media.
    2. A member(s) of senior management should be appointed with overall responsibility for the implementation and oversight of web-based, collaborative technologies and social media policies.
    3. Policies and procedures should be reasonably designed to ensure that the associated persons who participate in social media sites for business purposes are appropriately supervised, have the necessary training and background to engage in such activities, and do not present undue risks to the organization.
    4. The organization’s policy should prohibit any associated person from engaging in business communications in a social media site that is not subject to the organization’s supervision.
    5. The organization’s policy should require that only those persons who have received appropriate training on the web-based, collaborative technologies and social media policies and procedures may engage in the use of those technologies.

    Implications of Web-based Collaborative Technologies in Records Management (ANSI/ARMA 18-2011) is available for purchase through the ARMA International online bookstore.

    © 2016, ARMA International