Many organizations have learned to preserve forms of electronic data like e-mail for litigation, but websites and social media content can be an archival problem for purposes of e-discovery. What did your website look like on or about a particular time and just what tweets issued from your corporate and employees’ Twitter accounts in that same time frame?
The judiciary has offered little specific guidance on the discovery of social media in litigation, but there is little doubt that social media is discoverable. Rule 26 (a)(1)(ii) of the Federal Rules of Civil Procedure states that “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses” are discoverable. And according to the Gartner Group, by year-end 2013, “half of all companies [in litigation] will be asked to produce material from social media websites for e-discovery.”
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