As I do everyday, I receive these posts and articles about eDiscovery. Not very often does it make me want to create an article about it and share the details of a valuable topic.
As this case will describe, the best tactics are to hire an eDiscovery specialist and utilize software such as Clearwell to ensure your defensibility!
Tip One: Get an expert who knows how to collect the electronically stored information on social media.
Tip Two: Downloading a Facebook profile, printing it, and conducting document review for redactions is not the best way to produce social media.
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The Defendants in Stallings v. City of Johnston City, requested the Plaintiff produce the following social media:
Each and every social media posting by Stallings from 2011 to the present concerning her employment at Johnston City, allegations of wrongdoing against her, her suspension or termination, the investigation into missing money or wrongdoing in the Water Department, her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint. This request includes all postings made by Stallings at any time on a Facebook account, Twitter, Instagram, or any other social media site.
Stallings v. City of Johnston City, 2014 U.S. Dist. LEXIS 68566, at (S.D. Ill. May 19, 2014).
The Plaintiff stated that Facebook only allows for a download of data in its entirety. As such, the Plaintiff’s attorney and paralegal spent a week printing and redacting the 500 pages of the Plaintiff’s Facebook account.
The Court was not thrilled with the Plaintiff’s claimed technological hardships. The first Court ordered the Plaintiff to produce the un-redacted pages of the Facebook profile, then to produce the entire un-redacted file from 2007 to present day.
The Plaintiff did not identify with whom she had relevant discussions with on Facebook or whether any privileged attached to those conversations. Moreover, the Plaintiff argued that she had conversations with minors on Facebook, but not whether any of those discussions were relevant to the lawsuit.
The Court stated it was clear that the Plaintiff had relevant conversations on Facebook about the litigation. Id. Moreover, the Court recognized that the communications could have admissions against interest and impeachment value. As such, the Plaintiff had to provide the names and residences of the individuals she communicated with on Facebook.
The Court ultimately ordered the Plaintiff to produce a redacted hard copy of all relevant Facebook pages from 2011 to the present. The Plaintiff also had to provide defendants with the names and towns of residence of the individuals with whom the Plaintiff had relevant conversations. The Court defined the relevant Facebook pages as those containing statements about this case or the litigation, including discussions of her physical or mental health. The Plaintiff did not have to provide the names and location of minors without a Court order. Stallings.
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It is clear that the requesting party did a good job with their request, because it sought what was relevant to the case, not a social media fishing expedition.
This case highlights the challenges lawyers have in not retaining experts to perform collections. While not directly stated, it seemed the Plaintiff’s attorney was trying to collect the Facebook profile through the download option without an expert and then conduct a manual review. I would encourage a law firm client to try a different approach.
Refer back to tips one and two at the top of this article and have a better sleep!
Great thanks to http://bowtielaw.wordpress.com for bringing out this case for review.
regards,
Jeff