Diaries Magazine

Age of Social Media and Legal Discovery – Guest Post by Rachel Wheeler

Posted on the 18 August 2017 by Jaideep Khanduja @PebbleInWaters

Rachel Wheeler from MorningTrans talks about Age of Social Media and Importance of Legal Discovery. Following is a guest post by her on my blog. Here it goes. The web has changed how the world does business. With the rise of social media sites, vast amounts of information routinely began to be shared. And stored on web servers around the globe. These sites include Facebook, Twitter, Instagram, etc. With the advent of translation services, each bit of shared material can reach and affect an audience far greater than just a single-language piece of content. Thus, the risks and consequences of social media posting also increase.

The U.S. Congress, recognizing the lack of Fourth Amendment protections for this information, passed the Stored Communications Act (SCA) in 1986 to protect against unreasonable search and seizures of electronically stored information (ESI). All this is critical in the context of the age of social media.

ESI can include blogs, websites, and social media posts on sites like Facebook, Twitter or Instagram. The SCA outlines discovery procedures in court cases to gather this information when litigants can demonstrate that the ESI is relevant to their cases.

ESI in court cases can provide enormous value in court cases beyond actual posts. Through discovery, litigants also can gather information called “metadata,” which is data about the data: Authorship, date stamps, geographic locations, and more. This additional information can be crucial in establishing and clarifying facts in a case, such as where an individual might have actually been when a crime was committed, or creating a detailed timeline of events through date stamping.

Age of Social Media: Why Should You Be Concerned about ESI?

Simply put, any online information you or your company posts are relevant in court cases. You should not post anything online that you would not feel comfortable revealing in a court of law, should the need arise. Should you become a party to a lawsuit, legally you have to hand over any information—including ESI—that might be relevant to the case. While the temptation to delete ESI might occur, it is important to understand that doing so can be considered the destruction of evidence. This in itself a severe crime.

Age of Social Media and Legal Discovery – Guest Post by Rachel Wheeler

Today, social media sharing has become a critical part of doing business. In fact, over half of Fortune 100 companies have an online presence that includes blogs and social media accounts. Businesses, in particular, have significant challenges protecting their data in the event of lawsuits. The courts are aggressive in demanding that these companies understand and comply with the procedures for discovery of ESI.

The issues become more complicated with the global nature of online communication. Cross-border litigation can present challenging legal problems with respect to jurisdiction, free speech issues, or content. For instance, if a company hosts its website on a computer server that resides in a different country than the company, it complicates the issue. Because in that case, they need to resolve it in both locations.

Age of Social Media and its complexities

Producing material in multiple languages complicates the discovery process at yet another level. Foreign language material counts as evidence in court just like any other information. There is a need to preserve this material under the terms of the SCA. An entire industry has grown around the need to find and translate foreign language materials. Because that might be relevant to a court case.

Literally, hundreds of millions of posts, tweets, and blogs are produced every day. Individuals and companies should remember certain critical facts. Most important is that all the information they create and publish online might one day become discoverable in a lawsuit. Establishing clear, understandable procedures for storing this information is a necessity in today’s legal climate.


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