We have all recently heard about Cambridge Analytica mining Facebook users’ data through a variety of applications. We all probably know now that if we have a Facebook account, we need to pay attention to privacy settings to ensure that our posts are only directly available to those whom we want to see them. However, have you ever really considered closely what data you have already put into the hands of the various applications that most of us have? Applications like Twitter and LinkedIn contain a long trail of information about what we read, what we like, what we think warrants attention by others. The data trails we all leave behind should not only be mined by politicians and their consultants, but also by savvy attorneys.
We suggest a basic exercise for all attorneys. Go to your Facebook account and look at your data profile. We have attached for your consideration a summary of your data that Facebook allows you to access from your account (or at least what was allowed in late 2017). You can obtain a full collection of all such data that has not been deleted from your account by simply logging in and requesting a download. In other words, this is data that is within your custody and control, and it is expansive.
The implications from and availability of Facebook data are significant for many types of litigation. As you look through the various categories of data that can be mined from Facebook, please consider how it could be used to gain an advantage over parties in your litigation. You could learn about their friends and business contacts, their various email addresses, their activities, and messages exchanged on Facebook. If the information is there and easily accessible, what burdens are created by requesting that such data be searched for information relevant to the litigation? An appropriately tailored request should open the door to such data.
Setting aside the substance of the information maintained by Facebook, what about documentation of efforts to delete information from Facebook accounts after litigation has commenced? We know that efforts to delete plaintiff Facebook accounts and data have led to trouble for attorneys and clients. See e.g. Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (Va. 2013). The best way to find out if there is something worth pursuing in Facebook or other applications is to understand what potentially relevant data may be available and to narrowly tailor your requests to require that the application be searched for such data.
This is not only important from an offensive discovery perspective. It has significance from a corporate policy and employee education perspective as well. If a company has Facebook or other social media accounts, what are your policies and procedures for managing such accounts? How do you address employees’ posts on social media about corporate matters?
Pursuing electronic data does not have to be expensive or complicated if you know what you are looking for, make properly tailored requests and are prepared to undermine any burden arguments. By the same token, self-examination of your own (or your company’s) social media presence can provide great insight into your own potential exposure to discovery. Don’t forget that much of this often relevant information is already publicly available on Facebook or other social media platforms.