Social media is becoming more popular and in turn is being introduced more often in discovery. In response, the Sedona Conference updated its guide on social media, emphasizing relevance and proportionality when evaluating what communications to consider in discovery.

Counsel often battle over relevance, proportionality and burden, the Sedona Conference noted in the recently updated “The Sedona Conference Primer on Social Media.”

When assessing social media evidence, the guidance suggested evaluating which social media platform is likely to contain relevant information, what information is likely to be relevant and who possesses the social media data. What's more, deciding the date range of discoverable content and the reasonable preservation and production formats are key factors to consider when looking to avoid headaches during the discovery process.

Generally, social media is treated no differently procedurally from other requests for production, the guidance noted.

“The scope of discovery for social media content is no different from other categories of information. The threshold question remains whether social media evidence is 'relevant to any party's claim or defense and proportional to the needs of the case,'” the guidance said.

However, where social media can be unique is around questions of accessibility. If a message on social media is delivered and read, the courts are split if it's privy to the Stored Communications Act or not. Counsel can obtain communications protected by the SCA through a subpoena or obtain them directly from the user or subscriber.

But like any other discoverable content, it's important to know where and how social media is used. Lauren Schwartzreich, a Littler Mendelson shareholder and one of several drafters of the updated Sedona Conference social media guidance, said lawyers must understand how their client communicates and stores information.

“As lawyers we are doing a better job by maintaining some awareness about what the different social media platforms are and how they are being used and how that data is being stored and how it's accessible,” Schwartzreich said. “We face a bit of a risk if we don't take reasonable steps to invest and preserve information, there may be consequences down the line for our clients.”

The need to stay abreast of how clients are communicating and where that data is stored is essential for in-house as well.

“I think a lot of us are struggling with the availability of all these tools as a way to communicate,” said Amy Sellars, associate GC and discovery operations group lead for Walmart and a drafter of Sedona Conference's recent social media publication. “A lot of people are not thoughtful or mindful that business communications shouldn't live in a social media platform but the truth is that's where we are finding them now.” 

“We tend to rely on our old paradigms when it comes to preservation and collection,” but such preoccupation will lead to missing big sources of information, she added.

The lines of communication should also be open between legal and other departments to better understand where discoverable data resides, Sellars advised. For example, if a tool is created to better customer service, legal should be involved to review what and how data is preserved through that tool.

Lawyers should also become more aware of emerging social media to serve as better business partners, she added.