At a Dec. 19 webinar assembled by Hanzo, a data collection and archiving technology provider, legal technology and in-house professionals discussed the use of social media in litigation, compliance and investigations. The panelists noted that courts have approached the discovery of social media by stressing the need to assess posts' relevance on a case-by-case basis.

When conducting an internal investigation of an employee, the freedom to investigate his or her social media is nearly unlimited, so long as the postings are made through the company's server, said DHL Supply Chain Americas general counsel Mark Smolik.

But when investigating an outside matter, it's a different story. “The rules of evidence in most courts, particularly in the United States, they haven't changed,” Smolik said. “They have never been adapted to specifically reflect digitized discovery or social media.”

Panelists in the webinar noted that the U.S. District Court for the District of Nevada ruling in Hinostroza v. Denny's, especially its use of the “scorched Earth” term in reference to social media, serves as a potential bellwether to how to approach social media discovery.

Hanzo senior account executive Evan Gumz explained that in Denny's, the court ruled that social media is discoverable but proportionality matters under the same federal rule of civil procedure standard that is used for assessing discovery of paper documents.

“Quite candidly, I think the court would have come out with the same conclusion even if we didn't have digitized discovery because the scorched earth reference has been used for years in the courts,” Smolik said. Nonetheless, he said it was nice to see the court present that guidance.

Gumz also cited the New York State Court of Appeals decision in Forman v. Henkin, which held private posts on Facebook aren't entitled to any special protection based on the user's privacy settings, as another significant guideline for social media discovery.

The New York court said social media posts set for private viewing would be discoverable if they are “material and necessary to the prosecution or defense of an action,” Gumz said.

As social media, and the massive trove of data it can provide, becomes a mainstay in discovery, Smolik advised lawyers to take a proactive and unified approach when searching social media for discovery. He suggested defining what the team is looking for beforehand. Such an approach, he said, leads to better use of resources and expenses.