JAMS ADR Insights
Discovery of Social Media Data
Published August 27, 2014
The digital revolution has caused tremendous growth in the volume of documents stored and collected electronically. It has also caused the creation of new sources of digital data, one of the most significant of which is social media. As a direct outgrowth of mobile and Web-based technologies providing the basis of interactive communication, individuals and whole communities are able to share, discuss and modify user-generated content. The result thus far includes sites such as Facebook, LinkedIn, Twitter, Instagram, Snapchat and many others.
More Devices and More Data
A quick look at the statistics shows a surprisingly rapid rate of adoption of technologies allowing greater access to interactive communication. More than 87 percent of Americans own cell phones, with 46 percent owning smartphones. In July 2011, it was predicted that in five years, smartphones and tablets would reach 1 billion in sales. Instead, just 18 months later, sales reached 2.2 billion. These devices are capable of holding vast amounts of data, including text messages concerning competition, products, colleagues, confidential documents, GPS data and the like. The billions of devices constitute a vast source of discoverable evidence. In response to the proliferation of devices, employers have increasingly permitted employees to bring their own devices (“BYOD”) to use at work. The result has been that employees now work at home and other places far removed from the office. Thus, the employer has lost some degree of control over the creation and transmission of company data.
Different but Discoverable
While social media data has vastly increased, the very nature of social media itself often serves as a deterrent to counsel as they consider potential sources of electronically stored information (“ESI”) for purposes of discovery. Social media is still frequently viewed as a mysterious area that counsel rarely use, much less understand. The result is often that counsel are reluctant to engage in discovery in social media. The normal obstacles include the technical barrier, concerns over privacy and the rapidly changing nature of social media, with new sites routinely popping up on the social media landscape. The fact is, however, that it can be discoverable under the same rules governing other discovery—if the information being sought is reasonably calculated to lead to the discovery of admissible evidence.
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