At some point all litigators will need access to social media to pursue or defend our clients’ claims. Parties, employees and witnesses often post or message without any discretion. They may share digital images that contradict their claims of damages or demonstrate inconsistencies in their testimony. Often, parties resist allowing access to their social media due to privacy and relevance concerns. The resistance brings costs and complications that may stretch and strain one’s litigation budget or time constraints imposed by courts or otherwise.
Some of the best resources available to attorneys dealing with electronically stored information (“ESI”) are the collective works of The Sedona Conference. Recently the Sedona Conference published “The Sedona Conference Primer on Social Media, Second Edition” (“The Primer”). While it is an investment of time to review at over ninety pages, we think it proves to be well worth the investment and its organization allows for jumping straight to the issue(s) of greatest interest first.
Whether a Luddite or a Tech Savant, you can find helpful fundamentals, case references, and issue-by-issue analysis in clear language. The Primer provides useful topics covered in sufficient detail to get readers up to speed and pointed in the right direct. Some of the key topics include:
- Platforms and Other Traditional Forms of Social Media
- Messaging Applications
- Live Streaming
- Location-Based Social Intelligence Platforms
- Proportionality with Social Media, including Preservation and Collection
- The Impact of the Stored Communications Act
- Satisfying Evidentiary Standards
- Ethical Issues
One of the key ethical issues for attorneys with Social Media and all ESI is the duty of competence. The Sedona Conference continues to be a tremendous resource for attorneys. Social Media ESI is knocking on the door in a lot of matters. Be prepared to open the door.