New Social Media Services Like Snapchat Sure to Complicate Electronic Discovery

By Randy Sullivan

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There are ample signs that consumers are growing concerned about who’s following their ‘digital footprint.’ Facebook users are in revolt over eroding privacy policies and Google is under fire for harvesting data from seemingly private communications. Now a new app is promising to solve the problem by producing self-erasing messages and photos.

Meet Snapchat, the second most popular free app for the iPhone in early February, behind YouTube and ahead of Instagram. Snapchat’s website claims that more than 50 million “snaps” are sent every day. And it’s up to 19th among all apps, according to the analytics firm App  Annie.

This program could be a disruptive game-changer for the increasing number of online sites that make their living from gathering and mining data.

But can it really deliver what it promises? When all the posturing and geek-speak ends, the answer will likely come from the judicial system.

Snapshot is not unique in trying to serve the new-found need for renewable privacy. Wickr is a free mobile app that allows users to send each other an array of impermanent media — including self-destructing text messages, videos, audio files, and PDFs. Facebook itself has a type of disappearing photo service called Poke.

And the urge isn’t unique to America. In January 2012, Viviane Reding, vice president of the European Commission, proposed privacy legislation that contained a right-to-be-forgotten provision. Broadly defined, the right would affect Internet usage in 27 countries.

What emerges is a clash of competing interests – the privacy of the user versus the financial interest of the social media companies and their advertising clients.

But there’s another interested constituency that has yet to be heard from – the courts and parties involved in litigation.

Given the importance of email, text messages, and other communications in litigation, these services will undoubtedly become the subject of discovery and subpoenas.  Take just the employment context, where an employee claims they were harassed.  This digital evidence would be invaluable to both sides of this case.

Is it truly gone, if one of these technologies is used?

Probably not. Despite any statement to the contrary, all companies, including most recently Google and its “inadvertent” collection of Wi-Fi passwords, have an interest of compiling and retaining data. While the message may be gone from the sender and receiver’s systems, there are other partners to the transmission.

While the rules governing this information are in flux, for parties in litigation, often the best way around a fight with the opposition on producing information in any case is through a subpoena to the neutral third party – the social media or Internet provider.  It avoids a discovery motion, and the subpoenaing party is more likely to get what they are truly after because the third party has nothing to hide.

However, even today, there are substantial hurdles in securing this information, and it is going to get more difficult.

Facebook will not routinely comply with a subpoena stating it is exempt under the Stored Communications Act.  In practice, this typically requires a motion to force a party to consent to the disclosure, and then convince Facebook to comply.

Facebook and other social media’s resistance to producing such information are clear – it’s bad for business.  Consumers will be less likely to use the services, and the expense of complying with what would become a routine subpoena in just about every case filed would have an overwhelmingly negative impact on the bottom line. The relevancy and purposes of Facebook information can apply in any case and under almost any circumstance.

For many of these same reasons, undoubtedly Snapshot and other ‘disappearing information’ providers will take the same position.  Yet, the circumstances are different.

Because Snapshot offers supposedly short lived messaging, it raises new questions, such as whether anything in this digital age is short lived.  And how will that be handled in litigation?  If the message is not captured by the receiver, is the only remedy to argue that this occurred and then put the burden on the sending party to prove it did not occur?

Another problem is the concept advanced by local bar associations in California that any effort by an attorney to become a “friend” of a represented party is an ethical violation in which the attorney is making unpermitted contact with a represented party.  Other state courts have ruled that encouraging a third party to “friend” a represented party is similarly an ethical violation by an attorney.

There are a host of issues that are going to develop as this social media service grows in use and they are sure to be litigated.

For consumers, these developments pose a buyer beware challenge in selecting software and providers.

For employers, there is a challenge to traditional workplace handbooks. What’s your company’s policy on social media use and cooperation with investigations?

Now is the time to think it through before the changing technology comes back to bite you.

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Randy Sullivan, a partner at Patton & Sullivan, specializes in business and real estate litigation. For questions or comments he can be reached at randy@pattonsullivan.com.

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