How to Deal with Social Media Posts in Legal Hold Notices

SocialMediaSocial media is a key issue to be covered in legal hold notices, particularly where the case covers marketing of consumer products OR when there are individuals on either side.

Traditional marketing is now by the way side, and consumer products reach more consumers via social media.  That means the ESI on social media could be your best evidence of a fraudulent representation.  Judges know it too, and there have been more than 20 decisions on social media issues already in 2014. If social media hasn’t been on your preservation radar, it better be now.

There are 3 main points you need to convey to your clients about social media — verbally AND in a written hold notice if you send one (which is the best practice):

  • Do not delete any posts that are in any way relevant to the case.  Because litigants often don’t know what “relevant” encompasses, you’ll want to discuss that and potentially alter your strategy based on the type of case.  What’s relevant in a personal injury case is not the same as a corporate contract matter.
  • Do not make any new posts about any issues included in the case, or the case itself.  This goes for ALL platforms.
  • Each custodian must make a list of the sites on which they post for social media, and which sites may contain information that may need to be preserved.  To avoid needing their usernames and passwords, go through the sites with each custodian and look at what’s there to make preservation decisions. Join.me is a free desktop sharing tool that works great for a quick social media review.  They login, you look via their desktop and make decisions.  Done.

In mass tort cases, consider the use of a custodian questionnaire and assign one person to be in charge of follow up on social media postings.  It takes one click to delete an entire account, and you can watch your client’s case go up in smoke once that Facebook page is deleted.  Just see Gatto vs. United Airlines, 2013 WL 1285285, as a great example of how social media can tank your case fast.

Here’s some sample language from a written legal hold notice for a mass tort case that addresses social media issues.  Feel free to modify it for your own use:

SOCIAL MEDIA

If you have made any mention of your case, any damages you have had, or the xyz product on social media — no matter what site (Facebook, Pinterest, Twitter, MySpace, etc.) — DO NOT DELETE that information or alter it in ANY WAY.  It must also be kept and provided if necessary.  No matter what the content is, deleting that information is not acceptable [and may affect any ability to recover for your claims].  DO NOT MAKE ANY FURTHER POSTINGS ABOUT THIS CASE ON ANY PLATFORM, OR RESPOND TO ANY INQUIRIES VIA SOCIAL MEDIA.  Be sure to provide details (sites, dates and content if you have it) on your postings in the questionnaire below and we will work with you on how to proceed.

We’ll address collection of social media in subsequent posts.  For now, collect early and often when it comes to social media.  Just because it’s available now, doesn’t mean it will be there in 6 months when you get around to collecting it.

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