The Bluebird Sings: Twitter and eDiscovery

Wednesday, September 11th, 2013

Last year’s ruling by a Manhattan judge that Twitter must release tweets deleted by a user charged with criminal activity during the Occupy Wall Street protests was met with defiance from the social media giant. 

Despite their published privacy policy stating that posted tweets will be released “as lawfully required by appropriate legal process such as subpoena, court order or other valid legal process,” Twitter’s legal team fought the disclosure order on grounds of freedom of speech. 

Determined to make Twitter’s iconic blue bird sing, the courts have threatened financial sanctions – and it remains to be seen what the ultimate outcome will be.  

With social media data increasingly subject to disclosure orders, it’s clear that companies disinclined to take Twitter’s ‘civil disobedience’ route must look to their IT governance policies to ensure they do not fall foul of legislative requirements. Contemplating the future of eDiscovery, Philip Favro writes: “While most organizations … stay clear of potential criminal actions, the conduct of the protester in unilaterally deleting his tweets raises the question of whether organizations have developed an effective policy to retain and properly supervise communications made through social networking sites.”  

A clear inference from the Twitter case is that the deletion of a tweet does not constitute its erasure from the corpus of data: the law’s inexorable reach extends beyond the mere vanishing of words on the screen. 

Favro sets out some steps to assist firms with developing effective social media governance policies, which will guard against a failure to comply with eDisclosure requirements. He recommends: 

  • Preparing a ‘global plan’ for engagement with social media – of particular importance to corporations exploiting social media marketing opportunities; 
  • Training and educating employees regarding the company’s social media policy; and 
  • Ensure employees and management alike are aware of the legal repercussions of inappropriate social media use. 

However, anyone who has ever posted an exasperated Facebook status halfway through an interminable meeting will be only too aware that no amount of training can prevent the occasional slip-up – particularly when even a hasty deletion is no barrier to an eDisclosure order. 

The temptation to quail at the implications of a data disclosure landscape that shifts and expands apparently on a daily basis is understandable. Firms should ensure that they work closely with professional litigation support partners such as Legastat, who can advise on all eDisclosure matters – including the implications of that pesky little Twitter bird.  

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