Spoliation and Social Media

The problem (there's just one?) with trying to preserve social media evidence is that by its nature, its dynamic and constantly changing.

In this article, Mike Hamilton provides a good example of a judge giving the dreaded spoliation instruction for failing to properly preserve social media evidence.

In Gatto v. United Air Lines (D.N.J. March 25, 2013), the defendants eventually gained access to the plaintiff's Facebook page.  The plaintiff supposedly elected to deactivate his Facebook page.  He then informed the defendants that any posts were now lost because Facebook automatically deletes your account 14 days after deactivation.  Fun fact: this is not true.  If you have deactivated your account, you can still log back in with your old credentials, and everything will be the same.  If you can go without social media for 14 days, give it a try.

Generally, in order to get a spoliation instruction, a party must meet four factors:

1. The evidence was in the party's control
2. There was an actual suppression or withholding of the evidence
3. The evidence destroyed or withheld was relevant to the claims or defense; and
4. It was reasonably foreseeable that the evidence would be discoverable.

If we're talking about one person trying to preserve information from one Facebook page, that's not too complicated.  But what about large multinational corporations who have hundreds of thousands followers and posts?  The task can quickly get out of hand.

Mike's suggestion is to limit the sort of information that is available on a company's social media account.  In other words, take steps to minimize anything that is not related to the company or its product.  If a company finds itself needing to preserve evidence, there's always the good ol' screen grab, but I don't recommend that.  Instead, it's better to hire a company to capture and preserve the data for you.

If you're the one trying to get the information, here's a cautionary tale for you:  most social media companies and cell phone providers are subject to the Stored Communications Act (SCA), which prohibits disclosure of personal information to anyone other than a governmental agency.  Facebook flat out refuses to comply with subpoenas, but not all companies have the same policy.

For example, a lawyer in Maine was suspended for 30 days, and a trial judge alerted state and federal authorities when a cell phone company turned over 50,000 texts in response to a subpoena from the lawyer.  If you can get the other side to voluntarily disclose the information or have the court order disclosure, that's a better idea than picking a subpoena battle with Facebook or Twitter and then possible running afowl of the SCA.