March 03, 2022

discovery privacy disputes and investigations

In the attached article, the authors discuss the challenge with tools that enable the mass deletion of social media content.

The driver behind such a tool is to enhance individuals’ privacy rights and delete information they no longer want in the public domain. However, the authors wonder if this would create an eDiscovery spoliation nightmare.

This thought brings up the need to re-emphasize one of the key foundational elements of robust eDiscovery response: Act in good faith and document actions to demonstrate that measures were taken early and were as thorough as possible given the information available at the time.

Legal hold notices can be issued when an organization can reasonably anticipate litigation. If these notices are issued early, to as broad a custodian list as reasonable, and if they outline with specificity what should be preserved (including social media content), an organization can neutralize adverse inferences to juries and judges with demonstrations of good faith. Even if someone deletes social media content, as long as it wasn’t deliberate and as long as an organization can demonstrate that they issued a legal hold and noted acknowledgement, most judges and juries are pretty understanding. Yes, there may also be bad actors or simple mistakes. Sending out legal hold notices early generally cover these scenarios. It’s not foolproof (nothing is), but these best practices have withstood the test of time.

Back to the basics…